“SECRETARY OF LABOR,Complainant,v.BOISE CASCADE CORPORATION,Respondent.UNITED PAPERWORKERS’ INTERNATIONAL UNION, LOCAL 900,Authorized EmployeeRepresentative.Docket Nos. 89-3087 & 89-3088_DECISION AND ORDER_BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:These cases present issues relating to the application of our recentdecision in _General Electric Co._, 14 BNA OSHC 1763, 1990 CCH OSHD ?29,072 (No. 88-2265, 1990) (\”_GE_\”), in which we held that when theSecretary and the employer seek to settle a case which is pending beforethe Commission, any affected employees or their representatives who haveelected party status should be given the opportunity to offer theirinput to the proposed settlement before it is executed and submitted tothe Commission or a judge for approval. _See National Steel &Shipbuilding Co_., 14 BNA OSHC 1866, 1990 CCH OSHD ? 29,127 (Nos. 88-227et al., 1990) (\”National Steel\”).In the cases now before us, the Secretary conducted an inspection over aperiod of several months at a pulp and paper mill in Rumford, Maine,operated by Boise Cascade Corporation (\”Boise\”), after which theSecretary issued a number of citations alleging numerous violations ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-78(\”the Act\”). Boise and the Secretary then engaged in settlementnegotiations over an extensive period of time.[[1\/]] In response to ajoint request by the Secretary and Boise for an extension of time tofile a settlement agreement, the United Paperworkers InternationalUnion, Local 900 (\”UPIU\”), which had elected party status as therepresentative of affected employees,[[2\/]] asserted that it had notbeen allowed to participate in the settlement discussions between theSecretary and Boise.After receiving briefs from each party on the question of the right of aunion party to participate in settlement negotiations, as well asaffidavits, Administrative Law Judge Delbert R. Terrill issued the orderthat is before us now. Essentially, Judge Terrill interpreted ourdecision in _GE_ as establishing a minimum level of employee involvementin the settlement process. In his order, Judge Terrill viewed _GE_ asentitling employees or their representatives to be present during allsettlement negotiations, including conferences conducted by telephone. However, the judge concluded that _GE_ does not require that employeesor their representatives actually be allowed to speak at thosenegotiations, _i.e._, employees can be limited to the role of \”silentobservers.\” He therefore ordered that the UPIU be given reasonablenotice of any future settlement discussions so that it would have anopportunity to be present at such discussions. The judge also foundfrom the parties’ affidavits that the UPIU was not present at asettlement discussion held on June 12, 1990, nor was it informed of thesubstance of that discussion. He further found that the record was notclear as to the extent of any prior settlement discussions or the degreeto which the UPIU had been present at any such negotiations.Accordingly, he granted a request by the UPIU for disclosure ofinformation regarding these settlement negotiations.Both Boise and the UPIU filed petitions for interlocutory review. Boisetakes issue with Judge Terrill’s orders directing that the UPIU beincluded in settlement negotiations and that information regarding thesettlement negotiations be disclosed to the UPIU. Boise also disputesthe judge’s factual findings that the union was not allowed toparticipate in those negotiations. The UPIU excepts to the judge’sorder limiting it to the status of a ”silent observer.\” We grantedboth petitions and, in view of the importance of these issues to theenforcement of the Act, ordered oral argument in these cases. For thereasons that follow, we conclude that Judge Terrill erred, and we setaside his order.Essentially, Boise contends that Judge Terrill misapplied our decisionin _GE_. In Boise’s view, while _GE_ expresses the principle thatemployees or their representatives should have the opportunity to beheard when an employer and the Secretary seek to settle a case, _GE_does not authorize the judge to inject himself into the settlementprocess by ordering any particular type or manner of employeeparticipation. Furthermore, Boise asserts that the judge should notmake any determination as to whether employees have been given theopportunity to be heard until after the settlement agreement is executedand submitted for approval. The Secretary argues in support of Boise’sposition and asserts that it is his practice to receive views fromaffected employees or their proposal. Conversely, the UPIU contendsthat the right to elect party status under the Act entitles employees toparticipate as full equals to the Secretary and the employer in thesettlement process and, therefore, argues that employees or theirrepresentatives have the right to be present and to express their viewsat all settlement negotiations.In _GE_, we noted that the Act reflects Congress’ determination thatwhile the Secretary has the ultimate responsibility for enforcing theAct, employees have a legitimate interest in providing input to theSecretary when he makes decisions on their behalf. At the same time,however, we acknowledged the well-settled case law that the Commissionand affected employees or their representatives have only limited rolesin the settlement process. 14 BNA OSHC at 1764-65, 1990 CCH OSHD at pp.38,849-50. Accordingly, we sought in _GE_ to balance the interests ofemployees in having their views heard against the limitations placed onthe Commission’s authority when the Secretary and employer propose tosettle a case. We therefore held that the Secretary and employershould inform employees or their representatives that settlementnegotiations are being conducted and should receive the input ofemployees or their representatives before executing any settlementagreement. In addition, we indicated that after a settlement agreementis executed and submitted for approval by the Commission or judge, itwould be examined to determine whether employees were given anopportunity to provide input during its formulation. We did notexpressly address the issue raised here of whether the Commission or aCommission judge can direct that the employees’ input be received in anyparticular way through the issuance of orders enforceable in theCommission proceeding. We also did not rule on whether thedetermination of the extent of employee input may be made before thesettlement agreement is submitted for approval. However, we believethat the basic principles underlying the enforcement of the Act that wereferred to in _GE_ provide a framework for resolving these issues as well.While neither the Act nor its legislative history explicitly address therole of employees or their representatives in the settlement of a casepending before the Commission, it is clear that Congress intended andexpected that affected employees would have an opportunity to be heardduring the adjudicatory process. Thus, Congress required in section10(c) of the Act, 29 U.S.C. ? 659(c), that affected employees or theirrepresentatives be afforded an opportunity to participate as parties incommission proceedings. Furthermore, the history of the Act and itsnumerous provisions regarding the participation of employees in othercontexts evince a plain understanding on the part of Congress thatattainment of the Act’s goal of a safe and healthful workplace requiresa cooperative endeavor that can only be accomplished through theassistance and involvement of employees.For example, the legislative history of the Act clearly reflectsCongress’s concern that employees be consulted at the very inception ofan enforcement proceeding, that is, during the inspection of theiremployer’s worksite. As the House Committee on Education and Laborstated, \”If an inspector determines that a danger to health and safetyexists, he should be able to advise a worker’s representative or be ableto question workers, who ought to be permitted to disclose their concernwith an alleged hazardous work area.\” H.R. Rep. No. 1291, 91st Cong.,2d Sess. 22 (1970), _reprinted in_ Senate Comm. on Labor and PublicWelfare, 92d Cong., 1st Sess., Legislative History of the OccupationalSafety and Health Act of 1970, at 852 (1971). _See_ S. Rep. 1282, 91stCong., 2d Sess. 11 (1970), _id_. at 151 (\”appropriate degree ofinvolvement of employees themselves in the physical inspections of theirown places of employment\”). The Act’s initial declaration of\”Congressional Findings and Purpose\” in several places also refers tothe need to consult with employees. Congress indicated, among otherthings, that the objectives of the Act would be met \”by encouragingemployers and employees in their efforts to reduce the number ofoccupational safety and health hazards at their places of employment,and [by stimulating] employers and employees to institute new and toperfect existing programs for providing safe and healthful workingconditions.\” Section 2(b)(1), 29 U.S.C. ? 651(b)(1). Similarly,Congress stated that the Act was intended to \”[build] upon advancesalready made through employer and employee initiative for providing safeand healthful working conditions\” and to foster \”joint labor-managementefforts to reduce injuries and disease arising out of employment.\” Section 2(b)(4), (13); 29 U.S.C. ? 651 (b) (4), (13). As we pointedout in _GE_, the clear intent of Congress that the views of employees betaken into consideration is implemented in specific statutory provisionswhich allow employees to participate both in the development ofoccupational safety and health standards and in the enforcement of theAct against a particular employer, including the opportunity to requestan inspection, to accompany an inspector, and to consult with theinspector regarding possible violations of the Act. 14 BNA OSHC at1766, 1990 CCH OSHD at p. 38,850; sections 6(b)(1), 6(b)(6)(A), 6(d),8(e)-(f); 29 U.S.C. ?? 655(b)(1), 655(b)(6)(A), 655(d), 657 (e)-(f).Nevertheless, Congress’s determination that the input of employees isessential to effectuating the purposes of the Act does not establishthat Congress intended employees to constitute a separate and distinctenforcement authority under the Act. On the contrary, as the SixthCircuit observed in _Marshall v. OSHRC (IMC Chem. Group)_, 635 F.2d 544,550-51 (6th Cir. 1980), the Act does not grant employees a private rightof action. Rather, prosecutorial discretion in the enforcement of theAct is vested solely in the Secretary. _Id_.; _Donovan v. OSHRC (MobilOil Corp.)_, 713 F.2d 918, 927 (2d Cir. 1983). Accordingly, it is theSecretary who is responsible for protecting the interest of employees insafe and healthful working conditions. _Cuyahoga Valley Ry. v. United__Transp. Union_, 474 U.S. 3 (1985). As the court stated in _Oil, Chem.& Atomic Workers Int’l v. OSHRC (American Cyanamid_ _Co.)_, 671 F.2d643, 649 (D.C. Cir.), _cert. denied_, 459 U.S. 905 (1982), \”the Actcreates public rights that are to be vindicated by the Secretary throughgovernment management and enforcement of a complex administrativescheme.\” Thus, while Congress expected that employees would be heardduring the enforcement process, Congress intended the Secretary toensure that the views and concerns of employees have been taken intoconsideration in the exercise of his prosecutorial discretion. _See IMCChem._ _Group_, 635 F.2d at 551, in which the court cited with approvalthe Commission’s statement in _Southern Bell Tel. & Tel. Co._, 5 BNAOSHC 1405, 1406, 1977-78 CCH OSHD ? 21,840, p. 26,295 (No. 10340, 1977)that \”Congress intended to prelude employees and their representativesfrom usurping the Secretary’s prosecutorial discretion.\”The discretion to settle a case pending before the Commission is anadjunct of the Secretary’s prosecutorial and enforcement authority. _American Cyanamid_, 671 F.2d at 650 (\”necessarily included within theprosecutorial power is the discretion to withdraw or settle a citationissued to an employer.\”) We conclude that since Congress intended theinterests of employees to be effectuated through the Secretary’sjudgment as the enforcing authority under the Act, the entry of aCommission order directing either the method or degree of employee inputinto the process of a settlement that is ongoing between the Secretaryand the employer would contravene the Secretary’s enforcement authorityand discretion.[[3\/]]Our conclusion that the Commission is not empowered to issue an orderregarding the method or degree of employee input during the settlementprocess is supported by decisions addressing the difference betweenemployee participation when there is ongoing litigation between theSecretary and the employer and the role of employees when the Secretaryand employer seek to settle rather than litigate. At oral argument,counsel for the UPIU referred us to decisions holding that, in cases inwhich the merits of the Secretary’s enforcement action are in disputeand are being litigated before the Commission, employee parties arefully co-equal to the Secretary and employer and have the same right tolitigate all the disputed issues. _E.g., Donovan v. InternationalUnion, Allied_ _Industrial Workers (Whirlpool Corp.)_, 722 F.2d 1415,1419 (8th Cir. 1983); _Donovan v. Oil, Chemical and Atomic Workers__International (American Petrofina Co.)_, 718 F.2d 1341, 1350 (5th Cir.1983), _cert. denied_, 466 U.S. 971 (1984); _American_ _Cyanamid_, 671F.2d at 647. However, these cases also recognize that the role ofemployee parties in the settlement process is subordinate to that of theSecretary and employer.For example, the Eighth Circuit reasoned that because the employerinvokes Commission review of the merits of citation items, the union canlitigate matters other than the reasonableness of the abatement periodonly if those matters are in dispute between the Secretary and theemployer. 722 F.2d at 1421. That holding is consistent with the viewthe Commission previously stated in Southern Bell:[I]f the employer contests a citation, the union can become a party tothe hearing, but if the employer does not contest, the only way theunion can become a party. . . is if it contests the abatement period. [Where] the union has become a party in a proceeding initiated by theemployer’s notice of contest, its party status is, in effect, what mightbest be termed _vicarious_.5 BNA OSHC at 1406, 1977-78 CCH OSHD at p. 26,295 (emphasis added). With respect to the actual mechanism by which a settlement is achievedbetween the Secretary and the employer, the Fifth Circuit expressedagreement with the Second Circuit in _Mobil oil_ that \”employers wouldonly be discouraged from entering _settlement_ negotiations with theSecretary if they knew further proceedings before the Commission couldbe required.\” 718 F.2d at 1353, _quoting_ 713 F. 2d at 927 (emphasisadded). Similarly, in describing the enforcement authority of theSecretary, the Supreme Court held that \”a necessary adjunct of thatpower is the authority to withdraw a citation _and enter into settlementdiscussions with the employer_.\” _Cuyahoga Valley_, 474 U.S. at 7(emphasis added).Accordingly, we conclude that the enforcement scheme created by the Act,which gives the Secretary responsibility for safe-guarding the interestsof employees in the exercise of his prosecutorial discretion, precludesthe Commission from directing the method and degree of involvement ofemployees in any settlement proceedings through the issuance ofCommission orders. Clearly, Judge Terrill exceeded his authority by hisorder requiring the Secretary and Boise to allow the UPIU to be presentduring their settlement negotiations.[[4\/]] His order is contrary tothe enforcement scheme established by the Act and is therefore set aside.However, we emphasize that while we cannot order the method by which theSecretary and employer receive the views of employees or the amount ofinput they receive, consistent with the principles expressed in _GE_ weexpect them to make every effort to provide employees with theopportunity for input in the settlement process as much as practicable. We recognize that the manner in which the Secretary and employer conducttheir settlement negotiations may vary from case to case. In arelatively simple case involving only a few comparatively minorviolations, the settlement process will likely not take the same form asin a case involving numerous and complex citations. It is conceivablethat in some cases the settlement process will consist only ofcorrespondence or telephone conversations between counsel for theSecretary and employer, in contrast to proceedings, such as those beforeus here, in which settlement requires extensive and prolongedface-to-face discussions. Thus, practical and effective methods ofreceiving the input of employees will vary depending upon thecircumstances of the case.We note that at oral argument, counsel for the Secretary assured us thatit is the policy of the Secretary to confer with employees or give themthe opportunity to confer prior to the finalization of a settlementagreement. As part of this process, counsel for Boise suggested thatemployees be given a copy of a draft settlement agreement before it issubmitted for approval by the judge so that employees can indicatewhether they have any objections to the proposed settlement. Incertain cases, this would be an appropriate way for the Secretary andthe employer to obtain input from employees. However, it is not theonly way to receive employee input. Instead, we emphasize again that themethod and degree in which affected employees or their representativeswill be heard is the responsibility of the Secretary. We intend theseremarks as guidance to the Secretary in exercising his discretion as theprosecutorial authority under the Act.Nevertheless, while the Act vests authority in the Secretary to protectthe interests of employees, it does not grant the Secretary discretionthat is wholly unlimited. Generally speaking, the Act recognizes someconstraints on the Secretary’s discretion and provides that theSecretary’s exercise of his discretion is subject to review. Forexample, section 8(f) (2), which allows employees to notify an inspectorof any violation which they believe exists in their workplace, requiresthe Secretary \”to establish procedures for informal review of anyrefusal by a representative of the Secretary to issue a citation withrespect to any such alleged violation.\” Furthermore, section 10(c) ofthe Act also supports the proposition that the Secretary’s exercise ofhis prosecutorial discretion is reviewable. As we noted in _GE_, it iswell-settled that employees or their representatives may object beforethe Commission to the substantive terms of a settlement agreement withrespect to the reasonableness of the period of time prescribed forabatement of a violation. 14 BNA OSHC at 1765, 1990 CCH at p. 38,849. This opportunity, which is recognized in the Commission’s rules as well,[[5\/]] arises from a specific provision of section 10(c) which allowsemployees or their representatives to contest a citation on the groundthat the abatement period set forth is unreasonable. Thus, while theSecretary generally has authority to act on behalf of employees,employees have an independent right to be heard where there is anobjection to the abatement period. _Mobil Oil_, 713 F.2d at 928-29. Similarly, the Secretary’s prosecutorial discretion does not takeprecedence over the rights of employees under section 11 of Act, 29U.S.C. ? 660(a), which entitles any \”person\” aggrieved by an order ofthe Commission to file a petition for review in the courts of appeals. Employees or their representatives have the right to appeal an adverseruling of the Commission even if the Secretary, in the exercise of hisdiscretion, chooses not to seek review. _American Cyanamid_, 671 F.2d648-49.In view of the clear importance attached by Congress to employee input,we conclude that while we cannot order the method and degree by whichthe Secretary and employer receive the views of employees, we can reviewthe Secretary’s actions in this regard to determine whether theSecretary has abused his discretion. We also note that the limitedright of employees to object to the reasonableness of the abatementperiod in a settlement agreement once that agreement has been submittedto the Commission or judge for approval is distinct from the opportunityto provide input on all matters pertaining to the settlement before theagreement is finalized. Therefore, we also reject Boise’s contentionthat during the settlement process, employees may only be heard withrespect to the reasonableness of the abatement period. National Steel,14 BNA OSHC at 1868, 1990 CCH OSHD at p. 38,920; GE, 14 BNA OSHC at 1766n.5, 1990 CCH OSHD at p. 38,851 n.5.As we have indicated, the Secretary assured us at oral argument that hispolicy is and has been to afford employees an opportunity to presenttheir input before he enters into any settlement agreement. In view ofthe Secretary’s latitude to define the method and degree of employeeinput that he will receive in any particular case, we conclude that itwill not be proper for the judge to inquire into the provision ofemployee input except in unusual or egregious cases where it appearsthat the Secretary has contravened his stated policy by denyingemployees an opportunity for input. In such a situation, the absence ofan opportunity for employees to offer input would in our view constitutean abuse of discretion on the part of the Secretary. We emphasize thatbecause of the limited authority of the Commission to review settlementagreements, the judge is obligated to avoid any undue interference inthe settlement process. We therefore conclude that, except in thoserare cases where there clearly appears to be an abuse of discretion bythe Secretary, the proper role for the judge is to advise the Secretaryand employer of any claim that employees have not been given anopportunity for input so that the Secretary and employer may thenreconsider their positions in light of the claim.The judge must have discretion to entertain claims that employees havenot been heard in the settlement process _before_ the settlementagreement is finalized and executed by the Secretary and employer. Inthat way, the Secretary and employer can take the employees’ claims intoconsideration, and the Secretary will be better able to fulfill hisresponsibility to ensure that employees have had an adequate opportunityto be heard. [[6\/]] Considering that employee input will only bebeneficial if it is received before the Secretary and employer havereached a final decision on the terms of a settlement, we think it wouldalso be unwise to adopt the rule, advocated by Boise, that a judge mustwait until after he receives the executed settlement agreement beforeaddressing any concerns of the employees regarding the degree of theirinput into the settlement process. Accordingly, we conclude that JudgeTerrill did not err in considering the UPIU’s objection before asettlement agreement was submitted to him for approval.The UPlU’s claim that it has not been given an opportunity to provideinput in this matter is clearly without merit. The record reflects thatthe UPIU was substantially involved in these proceedings from theirinception. Representatives of the UPIU were present both at the closingconference following the inspection and at an informal conference withthe Secretary and Boise after the citations had been issued. The UPIUat that time advised the Secretary and Boise that it wished to begranted party status at any Commission proceeding that arose from thesecitations. Thereafter, all pleadings, as well as Judge Terrill’sorders, were served on the UPIU. While the UPIU was not present at theactual settlement negotiations between Boise and the Secretary, anaffidavit from Stephen C. Perry, who appeared on behalf of the UPIU inthese proceedings, concedes that \”on several occasions, after settlementnegotiations commenced, [he] received aspects of settlementnegotiations.\” It is also undisputed that during November 1989 Boiseconducted a series of meetings at the worksite with representatives ofthe UPIU for the purpose of addressing approximately 800 citation itemswhich remained unresolved following the informal conference. Accordingto the unrebutted affidavits of Jerry T. Fields, Boise’s corporatesafety and health director, and Thomas J. Wheeler, who at the time wassafety and health coordinator for the Rumford plant, a consensus wasreached regarding the methods and time for correcting these violations. As part of this consensus, employee representatives stated theirpriorities for addressing the various violations. Shortly thereafter,Fields and Wheeler as well as the UPIU representatives met with theSecretary’s acting area director and other OSHA personnel to present theresults and recommendations resulting from the management\/employee meetings.On June 12, 1990, the Secretary and Boise met again to discuss issueswhich remained outstanding as of that date. In an unrebutted affidavit,the Secretary’s area director, C. William Freeman, averred:That, on June 7 and 8, 1990, members of his staff had advised employeerepresentatives of the meeting scheduled for June 12, 1990 and informedrepresentatives that a latter [sic] meeting would be scheduled with themto discuss the June 12th meeting. On June 12th his staff spoke with Mr.Perry and set up a meeting on June 13th at the Regional office. Also onJune 7 and 8, 1990, OSHA advised the employee representatives that nofinal decisions would be made in this matter until he had met withthem. This was explained at the meeting on July 12, 1991 torepresentatives of the Respondent. In point of fact, no final decisionswere (have been) taken until he consulted with Mr. Perry and otheremployee representatives.That, on June 13, 1990, he, two of his staff, and the OSHA ActingRegional Administrator for Region I met with Mr. Stephen Perry, atBoston, Massachusetts for the purpose of obtaining from Mr. Perry andtwo union representatives from Respondent’s Rumford, Maine mill therepresentatives’ input into this matter, to allow for an informedevaluation of this matter (and to assist in the formulation of policyand recommendations which were subsequently made to counsel for OSHAregarding the sixteen items at issues between the parties).That, on June 13, 1990, OSHA reviewed with Mr. Perry and the two unionrepresentative[s] all substantive facts regarding the matters at issue.That, on June 13, 1990, OSHA verified with Mr. Perry and the two unionrepresentatives several assertions made by the Respondent on and priorto June 12, 1990.That, on June 13, 1990, OSHA obtained and discussed at length thepositions of Mr. Perry and the two union representatives as to hazardsexisting in the workplace in question, methods which might beimplemented to abate these hazards, their priorities in this matter, andthe like, all of which were specifically considered in [OSHA’s]subsequent formulation of positions with [its] counsel for subsequentnegotiation with the Respondent.Since it is undisputed that on several occasions the Secretary informedthe UPIU of the substance of the settlement discussions with theemployer, and the UPIU was given general opportunities to fully discussits concerns with respect to the citations, the UPIU has been affordedan opportunity for input in a manner consistent with this decision. [[7\/]]At the time of the June 12, 1990 settlement meeting there was anoutstanding order of Judge Terrill directing Boise and the Secretary tosubmit their settlement agreement by July 12, 1990. On that date,however, Judge Terrill directed that settlement negotiations ceasepending his ruling on the issue of the right of the UPIU to be presentat the settlement negotiations. The judge also denied a request by theSecretary and Boise for an extension of time of slightly less than onemonth, from July 12, 1990, to August 9, 1990, to submit their settlementagreement. In our order granting interlocutory review, we also stayedall settlement discussions pending our decision. In view of the factthat settlement negotiations have been suspended since July 12, weconclude that the additional extension of time requested by Boise andthe Secretary should be granted.Accordingly, Judge Terrill’s order is set aside, and the stay wepreviously entered is vacated. Judge Terrill is instructed to allow theSecretary and Boise an additional period of 25 days to submit asettlement agreement for approval. We emphasize that in view of ourdetermination that an opportunity for employee input has been providedconsistent with the Secretary’s policy, the judge is to conduct nofurther inquiry into the matter of employee input and is to issue noadditional orders relating to the provision of input by the UPIU.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: February 1, 1991————————————————————————MONTOYA, Commissioner, concurring:I reluctantly join in the majority’s opinion in this case. I have noquarrel with the outcome here since I fully agree with my colleagues’conclusion that the Secretary and Boise have already provided UPIU withsignificant opportunities for input into their prospective settlementagreement, and they have stated their intention in oral argument tocontinue doing so until a final agreement is executed and filed with thejudge. I am disturbed, however, by the precedent of the courts ofappeals regarding the role of the Commission and its judges when unionor affected employee parties raise the claim that they have been deniedan opportunity for input into the settlement process. From a publicpolicy viewpoint, I can see a great deal of merit to UPIU’s argumentsthat the Commission and its judges should take a more active role inprotecting affected employee interests and assuring that they are givenan opportunity to provide input into the settlement process. If I were\”writing on a clean slate,\” I would undoubtedly support a position muchcloser to UPIU’s position than the position taken by the Commission inthis case. Unfortunately, I am not writing on a clean slate, but amseverely constrained by well established case law restricting theauthority of the Commission in relation to affected employee objectionsto settlement agreements. _See Donovan v. OCAW (American PetrofinaCo._), 718 F. 2d 1341, 1351-53 (5th Cir. 1983), _cert. denied_, 466 U.S.971 (1984) (court adopts narrow interpretation of right of employees toparticipate in the settlement process in view of case law consistentlysupporting that position). I therefore regretfully conclude that I cango no further in asserting Commission authority in this area than thisdecision has gone.Velma MontoyaCommissionerSECRETARY OF LABOR,Complainant,v.BOISE CASCADE CORPORATIONRespondent,INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2144Affected Employees,UNITED PAPERWORKERS’INTERNATIONAL UNION, LOCAL 900Affected Employees,Docket Nos. 89-3087 & 89-3088_ORDER __STATEMENT OF CASE_On September 7, 1990, an order was issued directing that affectedemployees be offered the opportunity of being present as silentobservers during all future settlement negotiations. Also, the orderprovided that any party could seek a hearing if there was a factualdispute as to the extent of the participation of affected employees herein the settlement process. On September 17, 1990, Respondent requestedreconsideration and a stay (while noting its intent to seek aninterlocutory appeal) of the September 7, 1990 order. On September 18,1990, an order was entered granting the stay of the implementation ofthe September 7, 1990 order.On September 26, 1990, affected employees filed a Verified Motion forReopening, Access to Information, and Other Relief and affidavits oftheir representatives asserting that as a party they were not presentduring settlement discussions as envisioned by the order dated September7, 1990. Further, the affected employees requested to be present at allfuture settlement discussions and that a hearing be convened to resolvematters at issue. On September 27, 1990, affected employees filed theiropposition to the motion for reconsideration.On October 3, 1990, Complainant filed its pleading supportingRespondent’s request for reconsideration and otherwise essentiallyreiterating its initial brief. On October 4, 1990, Respondent filed aletter noting that its interpretation of the September 18, 1990 stayresulted in the affidavits of the employees being a nullity given thatthey were not part of affected employees response to Respondent’s Motionfor Reconsideration but were attached to a Verified Motion forReopening, Access to Information and Other Relief. Further, Respondentrequested direction of the court as to the interpretation of theSeptember 18, 1990 stay and whether a response was required to themotion of the employees.On October 5, 1990, an order was issued clarifying that the stay in theSeptember 7, 1990 order only related to requirement that affectedemployees be allowed to participate as silent observers in futuresettlement discussions. The order also required that by October 10,1990, the affected employees provide complete copies of their September26 and 27, 1990, pleadings and supporting affidavits to Complainant andRespondent. Finally, the order also granted Complainant and Respondentuntil October 17, 1990, to file their responses.On October 10, 1990, the affected employees complied with the order.[[1]] On October 17, 1990, Respondent filed its response. Respondentrequested that its Motion for Reconsideration be granted in itsentirety. Noting that the legal issues raised in its Motion were ripefor decision and that it should not be required to engage in a timeconsuming costly \”diversion\” that \”may well prove to be unnecessary\”,Respondent urged that its Motion be ruled on before any factualdetermination is made based on the affidavits submitted regarding theextent of affected employee participation in the settlement process. Accordingly, Respondent opposed the affected employees request forhearing to determine whether there has been meaningful participation byaffected employees in this matter.Also on October 17, 1990, Complainant filed its response to the VerifiedMotion.[[2]] Complainant’s response rebutted the Perry and Patrickaffidavits relying upon the Freeman affidavit. On October 17, 1990,given that the undersigned had yet to rule on Respondent’s Motion forReconsideration, the Commission denied Respondent’s Petition forInterlocutory Review without prejudice.On October 18, 1990, Respondent initiated a telephone conference callamong and between the parties including a representative of affectedemployees. Respondent proposed, with Complainant concurring, that thesettlement discussion process be restarted with affected employees beingpresent and able to participate fully, and not simply as silentobservers. Affected employees, acknowledging that such was a good firststep, requested that before restarting the settlement process they beinformed regarding the substance of prior settlement discussions. Respondent countered stating that on only June 12, 1990 were substantiveissues discussed during which affected employees were not present andoffered to provide affected employees memoranda which would informaffected employees of the June 12, 1990 discussions. When questioned bythe undersigned as to whether there was agreement that June 12, 1990 wasthe only date that affected employees were not present for settlementdiscussions, there was dispute as to this and other facts and an impassewas reached.As articulated then, the undersigned noted that Respondent had made aconvincing case for resolving the legal issues first and indicated thecourt’s intention to issue this decision.On October 19, 1990, responding to Respondent’s concern about\”reinventing the wheel\” yet while reserving the right to request suchinformation in the future, affected employees (UPIU) withdrew theirrequest for \”all notes and memoranda relating to settlement discussionsso far\”. Further, in order to preclude further delay of the settlementprocess, UPIU requested full participation in future settlementdiscussions. Finally, UPIU clarified that the Perry and Patrickaffidavits made assertions relevant only to the time periods theindividuals were designated as representatives of affected employees._APPLICABLE LAW, RULES AND REGULATIONS_The issue here is one of first impression interpreting the Commission’sdecision in _General Electric Co._, OSHRC Docket No. 88-2265 (August 29,1990). In addition to the applicable law, rules and regulations recitedin the September 7, 1990 order which are incorporated herein, theAdministrative Procedure Act (\”APA\”) [5 U.S.C. 554 (c)] also requiresthat agencies afford interested parties the opportunity to provide inputduring the settlement process. Further, Commission Rule 101 providesan existing Commission mechanism to resolve issues arising during thesettlement process._CONTENTIONS OF THE PARTIES_Respondent argues that the September 7, 1990 order exceeds the intent ofthe Commission’s ruling in _General Electric_ (\”_GE_\”) and that GE onlyrequires affected employee \”input\” at \”some point before a settlementagreement is executed between the Secretary and the employer\”. Respondent further argues that whether affected employees had a\”meaningful opportunity\” to participate in the settlement process is adetermination to be made by the administrative law judge _only after_the complainant and a respondent have submitted their settlement to thejudge.Otherwise, Respondent contends that the judge is cast in the role asreferee which Respondent asserts to be both \”improper and impractical\”and an \”unnecessary intrusion\” into the settlement process.Respondent also opposes the Verified Motion of affected employeesarguing that it is a \”sweeping request… totally without basis\”.Respondent argues that affected employees are here essentiallyrequesting discovery. Accordingly, Respondent argues that theirrequests for information be controlled by the rules of discovery. Finally, Respondent argues that the motion by seeking information beyondthe scope of discovery amounted to a \”fishing expedition\” by affectedemployees.The affidavits submitted by Respondent indicate affected employeeparticipation until a June 12, 1990 meeting between Respondent andComplainant.Complainant essentially asserts that the September 7, 1990 order mayremove opportunities for spontaneous settlements and otherwise willresult in a more a formal process than what is necessary and effectiveto reaching settlements. Complainant also argues that the request forinformation by affected employees be treated as and controlled by therules of discovery. Finally, Complainant argues its concern that thehazards cited are not being abated while the issues here are being debated.The affidavit of OSHA Area Director C. William Freeman states that:employee representatives have consistently had input into thenegotiation of this matter; after the citations were issued, his officestaff met with representatives of Respondent and representatives ofemployees; OSHA solicited and received the views and priorities of theemployee representatives before reaching settlement with respondent asto certain items; a second meeting with OSHA staff and employeerepresentatives on the remaining sixteen items in dispute was held; onJune 7 and 8, 1990, employee representatives were informed of animpending June 12 settlement discussion to be held between OSHA staffand representatives of the respondent on these sixteen items; employeerepresentatives and representatives of the Respondent were also informedthat a subsequent meeting would be scheduled with employeerepresentatives to discuss the June 12 meeting and that no finaldecisions would be made on this matter until then; a June 13 meeting washeld between OSHA staff, the OSHA Acting Regional Administrator forRegion I, Stephen Perry, and two union representatives from respondent’smill during which all substantive facts regarding the matters werereviewed; and that OSHA canvassed the union and Mr. Perry’s viewsregarding hazards in the workplace, methods of abatement, and otheritems germane to subsequent negotiations with respondent. As a result,Complainant argues that the only discussions at issue involve Perry who\”was not actually _present_, as a silent observer, during one conferenceand one follow-up telephone call\”. Given OSHA’s interaction withaffected employees, Complainant argues that employee representativescannot credibly argue that they have been denied the opportunity formeaningful participation in the negotiation and resolution of this matter.The affected employees on the other hand argue that the Commission inits _GE_ decision ruled clearly that whether affected employees as aparty were permitted to participate in a settlement negotiation was\”clearly within [the judge’s] discretion under the Commission’s rules.\” _GE_, slip op. at 8, n. 4, _citing_ Commission Rule 51, 29 C.F.R. ?2200.51. Further, they contend that Respondent’s proposed mechanismfor applying the _GE_ standard requires waiting until petitioner andrespondent submit a settlement agreement to the judge which affectedemployees claim is contrary to the \”expeditious, just and inexpensivedetermination in every case\” given that if it is determined thatmeaningful opportunity had been denied, the judge would be required tohave the parties restart the settlement process. In support they citeCommission Rule 2 and Rule 1 of the Federal Rules of Civil Procedure. Finally, the affected employees argue that the issue of the meaningfulopportunity to participate here is not premature, but is ripe forjudicial determination and that in so ruling the September 7, 1990 ordercorrectly applied the Commission’s _GE_ decision to the facts herein.The affidavits submitted by affected employees indicate that: oneindividual designated as a representative for affected employees sincethe time of the walkaround [Trawick] had not participated in anydiscussions since the informal conference; one individual designated asa representative for affected employees since the time of the inspection[Cook] had not participated in any settlement discussions and had notbeen afforded an opportunity of submitting meaningful input; oneemployee designated as a representative for affected employees beginningat an undetermined point [Patrick] and one individual designated as arepresentative of affected employees on June 7, 1990 [Perry] had been\”totally denied presence at all settlement discussions\”. Accordingly,the affected employees requested \”all memoranda, notes, recordings andinformation of every kind regarding all such settlement negotiations nowand on a continuing basis, including a list showing dates and locationsof all previous discussions by telephone or in person\”. Seeking fullparticipation in future settlement discussions, affected employees(UPIU) dropped their request for the above information._DISCUSSION_Respondent’s point that the September 7, 1990 order did not afford theparties an opportunity to include within their briefs the _GE_ decision,given its recent issuance, is well taken. Accordingly, its motion forreconsideration is hereby granted in part.As a result of Respondent’s request for reconsideration, the partieshave had the opportunity of briefing the issues here at hand in light ofthe recent Commission _GE_ decision and as a result the undersigned hasbenefited from such insights provided by the parties. Accordingly, thereappears to be little basis for requiring further briefing from theparties before ruling. The September 7, 1990 order is thereforereconsidered as follows.Respondent acknowledged that the Commission in its _GE_ decisionenvisioned a \”mechanism by which employees can be given an opportunityfor participation in the settlement process.\” _GE_ slip op. at 7.Contrary to Respondent’s concern that the judge will become a \”referee\”,Commission Rule 101 provides for a mechanism for appointing a settlementjudge to mediate such issues. The role of the settlement judge, ascontemplated in Commission 101, comports with the contemporary view ofjudges as \”case managers\” or \”managerial judges\”. See Resnick,Managerial Judges, 96 Harvard L. Rev. 374, 378 (1982); Resnick,_Managerial Judges and Court Delay: The Unproven Assumptions_, 23-24Judges Journal 8 (1984-85); Constantino, _Judges as Case Managers_,Trial, March 1981 at 56-60. This contemporary and arguably now majorityview adopted by judges departs from the American legal establishment’sembrace of the classical view of the judicial role personified by themystic goddess Justicia, who \”carries scales, reflecting the obligationto balance claims fairly; [who] possesses a sword, giving her greatpower to enforce decisions; and [who] wears a blindfold, protecting herfrom distractions\” and who remains \”aloof and stoic… represent[ing][the] psychological distance between the judge and litigants.\” Resnick, _Managerial Judges_, supra, at 376 and 383.[[3]] Today’s\”[m]anagerial judges are not silent auditors of retrospective eventsretold by first-person storytellers. . . [but] remove their blindfoldsand become part of the saga themselves.\” _Id_. at 408. Thiscontemporary view is not however limited to judges designated assettlement judges but contemplates that judges in every matter beforethem carry the responsibility of settlement judge.The 1983 amendment to Rule 16 of the Federal Rules of Civil Procedurecodified the concept that the \”trial judge was indeed ruler, not only ofpretrial conference, but of the entire pretrial process.\” McKay, _Rule16 and Alternative Dispute Resolution_, 63 Notre Dame L. Rev. 818, 823(1988). \”Rule 16 was amended in 1983 with the unmistakable purpose ofencouraging ADR [alternative dispute resolution] as a significant partof the judicial process.\” Id. at 824.[[4]] See also, Peckham, _TheFederal Judge as a Case_ _Manager: The New Role in Guiding a Case fromFiling to Disposition_, 69 California L. Rev. 770 (1981).Commission Rule 51, as noted in _General Electric_, expands theprehearing and scheduling procedures which a judge may direct underF.R.Civ.P. 16. While Commission Rule 51 and Rule 16 of the F.R.Civ.P.address pretrial conferences, they implicate the settlement process aswell. Rather than straitjacket the agencies settlement process with aformal rule for every agency, \”Congress intentionally left the agenciesfree to develop the precise manner by which they implement theopportunity for settlement. Thus, a single accepted settlement processor even guidelines within the APA or administrative law do not exist.\” Harter, _Neither Cop nor_ _Collection Agent: Encouraging AdministrativeSettlements by Ensuring Mediator Confidentiality_, 42 ABA Admin L. Rev.315, 316 (1989) noting the U.S. Department of Justice \”AttorneyGeneral’s Manual on the Administrative Procedure Act\” 48 (1947),reprinted in the Administrative Conference of the U.S., \”FederalAdministrative Procedure Sourcebook\” 97 (1985).Further, support for the requirement that affected employees be at leastsilent observers to settlement discussions is found in the APA at 5U.S.C. ? 554 (c). Section 554 (c) requires that agencies \”give allinterested parties opportunity for-(1) the submission and consideration of facts, arguments, offers ofsettlement, or proposals of adjustment when time, the nature of theproceeding, and the public interest permit…The emergent concept of a managerial judge once instituted here is onethat may not only foster quicker or more efficiently reachedsettlements, but responsible ones as well. Contrary to the concernsraised by Complainant and Respondent that tripartite negotiations willimpose \”unacceptable restraints\” which will lead the parties to litigaterather than settle, given the Commission decision in _GE_, theparticipation of affected employees as silent observers may expediterather than delay settlements. Further such participation willcertainly allow the parties to reach a more sound agreement as well asgive substance and meaning to the affected employees right toparticipate in the settlement process. Finally, the disruptionenvisioned by Complainant and Respondent to the settlement process frominclusion of affected employees as silent observers rings hollow giventhe exceptionally few number of cases in which affected employees evenseek party status. In those few cases where, as here, party status isobtained by affected employees, a more structured settlement process asestablished here may prove helpful. Allowing affected employees toparticipate as silent observers from the start of the settlement processwill preclude any restart of the settlement process.Finally, requiring that affected employees be at least silent observersdoes not preclude Complainant and Respondent from allowing affectedemployees to participate more fully. Respondent and Complainant mayexercise discretion to allow, without court intervention, expandedparticipation by affected employees as they deem appropriate. Themechanism envisioned herein and in the September 7, 1990 order howeveris the minimum participation required to insure that affected employeesparticipation is \”meaningful\”.Respondent’s concern that it and Complainant will be faced with an\”endless ‘reinventing of the wheel’\” by a\”limitless number of ’employee representatives’ in an OSHA proceedingand that these ‘representatives’ can step forward at any time to claimthat because they have not _personally_ participated in past settlementdiscussions–although other employee representatives haveparticipated–employees have been precluded from meaningfulparticipation in the settlement process.while understood, overstates the problem and is easily resolved. Theopportunity to participate as a silent observer is granted not to theparticular representative but to the union or group obtaining partystatus. So long as the party has been afforded reasonable notice ofany forthcoming settlement discussions, a representative for that groupor union can not later step forward and claim that because they were notpersonally present as a silent observer that there has been a lack ofmeaningful participation for the union or group. Likewise, once givensuch notice, if a party fails to have a representative present, itforgoes any right to be informed of the discussions that took place.Based on the affidavits submitted, there appears to be no factualdispute that the affected employees were not present for settlementdiscussions on at least June 12, 1990. The affidavit of OSHA AreaDirector Freeman indicates that the affected employees were given noticeof the June 12, 1990 settlement meeting, and that affected employeeswere given ample opportunity to provide input. However, nowhere did AreaDirector Freeman indicate that affected employees were informed as tothe substance of the settlement discussions. Area Director Freeman’saffidavit substantiates the basis for this court’s concern asarticulated in the earlier order; i.e. that even an ample opportunity toprovide input is meaningless without a foundation of knowledge(including knowledge of the settlement discussions of the parties) tomake the input meaningful. Regarding the presence of affected employeesat other settlement discussions, the facts are not clear at this time asto the extent of such discussions and the extent to which affectedemployees were present. Further, in addition to the presence ofemployees at the settlement discussions, there appears to be a factualdispute as to the extent to which affected employees have meaningfullyparticipated vis a vis their opportunity to provide input. Respondentand Complainant both seek to have the order reconsidered here on thebasis that affected employees have had meaningful participation whichthe affected employees dispute. However, both Respondent andComplainant also argue that there should be no hearing to resolve thisdispute. Respondent’s position is based on its desire to seekinterlocutory review of the legal issues. Complainant on the other handbases its argument on the position that affected employees have alreadybeen afforded meaningful participation, thereby appearing to eitherdesire a ruling on the written record or otherwise appearing to beg theissue generally. Complainant and Respondent can not have it both ways. Accordingly, Respondent’s request for reconsideration is hereby grantedin part as noted above and denied in part as contained below._FINDINGS_Affected employees who had obtained party status while given notice ofproposed settlement discussions, were not allowed to have theirrepresentatives (who were duly designated) present during settlementdiscussions that took place one June 12, 1990._CONCLUSION_Given that it is clear that employees were not present during at leastthe June 12, 1990 settlement, the matter is ripe for review at least onboth a factual and legal basis regarding this meeting. GivenRespondent’s argument that no further factual determination be madeincluding any hearing to resolve the other factual disputes, affectedemployees motion for hearing is denied pending resolution ofRespondent’s interlocutory appeal. Affected employees request forcertain documents and information is granted in part and denied in partas described below.Accordingly, the undersigned envisions the following mechanism foreffectuating the Commission’s _GE_ decision and implementing theundersigned’s order of September 7, 1990:1) Once affected employee(s) obtain party status, from that pointforward only, they or their authorized representatives must be givenreasonable notice to observe any and all parts of the settlement processincluding any discussions, negotiations or other communicationsregarding settlement between petitioner and respondent in person or bytelephone conference.2) Throughout the settlement process, affected employee(s) or theirauthorized representatives will have the opportunity to observe [or inthe case of telephone conferences hear] all such communications but willnot participate in such discussions other than as silent observers.3) If during the settlement process problems arise regarding the denialof the presence of or regarding the participation of any party, a partymay, by motion pursuant to Commission Rule 101, seek the appointment ofa settlement judge to mediate such problems. If the appointment of asettlement judge is objected to by Complainant or Respondent then thejudge assigned must resolve the problems.4) Prior to the submission of any final settlement to the judge,affected employee(s) or their authorized representatives will beafforded the opportunity of providing input to Complainant regarding anyand all matters at issue in addition to the reasonableness of the periodof abatement including but not limited to the inspection, citation(s),and\/or other issues arising during the settlement process.5) Subsequent to the submission of a settlement agreement to the judge,affected employee(s) or their authorized representative(s) may file withsuch judge their objections as to the reasonableness of the time periodprescribed for abatement. The issue of the failure of a settlementjudge to provide for or the general issue of meaningful participation byaffected employees may be grounds for an interlocutory appeal.6) On interlocutory appeal or once a settlement is approved, theCommission only may entertain any complaint by affected employees thatthey were denied meaningful participation.Given that much of the settlement process here \”has passed under thebridge\” and in order to comply with the above settlement mechanismeffectuating the Commission’s _GE_ decision as reasonably as practicableand to encourage efficient disposition of this matter, Complainantincluding its client the Occupational Safety and Health Administrationand Respondent are hereby ordered to disclose to the affected employeeswho have obtained party status all memoranda, notes, recordings andinformation of every kind describing the substance of the settlementdiscussions of the June 12, 1990 meeting. Given that this order isissued after Complainant and Respondent initially disclosed or producedsuch documents or information without the knowledge of the consequencesof this order, Complainant or Respondent may seek to limit, beyond whatmay be excised as noted below, specific documents or information frombeing disclosed to affected employees by filing a motion pursuant toCommission Rule 101 seeking the appointment of a settlement judge tomediate any such disclosure issue. Complainant and Respondent mayexcise from such memoranda, notes, recordings and any other informationbeing provided, as ordered above, to affected employees any languagecontained therein which is not descriptive of the discussions but whichanalyzes the settlement process or otherwise might be described asattorney work product. Complainant and Respondent will also submit toaffected employees an affidavit of lead counsel for Complainant andRespondent containing a chronology listing dates and locations of allother settlement discussions by telephone or in person which have takenplace since the issuance of the citations.[[5]] Finally, settlementdiscussions may begin 15 days after the affected employees have receivedfrom Complainant and Respondent the information required above. Representatives of affected employees shall be present during theremaining communications comprising the settlement process and numbers1) _et seq_ of the above settlement process mechanism shall remain ineffect for the balance of this proceeding. If affected employees, oncehaving been provided reasonable notice of an intent of Complainant andRespondent to enter into settlement communications, chose not to bepresent nor to be included in any telephone conference, neitherComplainant nor Respondent are under any obligation to apprise suchaffected employees of the substance of such communication.SO ORDERED.DELBERT R. TERRILL, JR.Judge, OSHRCDated: October 23, 1990Boston, MassachusettsSECRETARY OF LABOR,Complainant,v.BOISE CASCADE CORPORATIONRespondent,INTERNATIONAL BROTHERHOOD OFELECTRICAL WORKERS, LOCAL 2144Affected Employees,UNITED PAPERWORKERS’INTERNATIONAL UNION, LOCAL 900Affected Employees,Docket Nos. 89-3087 & 89-3088 _ORDER GRANTING EMPLOYEE REPRESENTATIVE’S REQUESTTO BE PRESENT DURING ALL SETTLEMENT DISCUSSIONS __STATEMENT OF CASE_On September 13, 1989, Complainant issued Citations and Notifications ofProposed Penalty to Respondent alleging violations of the OccupationalSafety and Health Act, 29 U.S.C. ? 651 et seq (\”Act\”). Respondenttimely filed with a representative of the Secretary of Labor anotification of intent to contest the citations and proposed penalties.Complainant and Respondent subsequently engaged in settlementnegotiations to resolve the issues raised in the citations. A motion forextension of time was granted on May 21, 1990 in order for the partiesto complete the settlement process and to file an anticipated SettlementAgreement on or before July 12, 1990.On June 7, 1990, Stephen Perry filed a notice of appearance asrepresentative of United Paperworkers International Union (UPIU) Local900. On June 7, 1990, an Order was issued designating UPIU, Local 900as a party to this matter and the authorized representative of affectedemployees.On July 6, 1990, in response to a July 3, 1990 motion for extension oftime to file the anticipated Settlement Agreement filed by Complainantand Respondent, Perry filed a response asserting that the employeerepresentative has been \”completely excluded from any meaningfulparticipation in any settlement discussions regarding the citations.\” AJuly 12 Order was subsequently issued ordering all parties to filebriefs relating to the issue of rights of a union with party status in aReview Commission proceeding to participate in settlement negotiations.Stephen Perry and UPIU Local 900 filed a brief on July 31, 1990, inresponse to the Judge’s Order of July 12, in support of its positionthat it be accorded full participation in settlement conferences whichmay be held between representatives of the Complainant and Respondent toresolve the citations in the instant matter. Complainant and Respondentfiled briefs in opposition to this position, stating that authorizedemployee representatives have no right under the Act to participatedirectly in settlement negotiations between Complainant and the employer._APPLICABLE LAW, RULES AND REGULATIONS_Section 10 (c) of the Act provides employees and their authorizedrepresentatives two alternatives to participate in proceedings beforethe Review Commission. First, Section 10(c) provides that after acitation has been issued, employees or their representatives may file anotice of contest \”alleging that the period of time fixed in thecitation for the abatement of the violation is unreasonable,\” and theCommission shall then \”afford an opportunity for a hearing.\” 29 U.S.C. ?659(c). Secondly, Section 10(c) provides that \”the rules of procedureprescribed by the Commission shall provide affected employees orrepresentatives of affected employees an opportunity to participate asparties to hearings under this subsection.\” [[1]] It has been notedextensively that these two sentences in section 10(c) have caused muchcontroversy concerning the scope of employee and union rights toparticipate in Commission proceedings. [[2]]Before 1977, the Commission held that it had the authority to entertainunion and employee objections to proposed settlements on matters otherthan the reasonableness of the period of time for abatement. SeeAmerican Airlines, 2 BNA OSHC 1391 (Review Commission 1974). In 1977,the Commission held that employees’ and union’s objections to proposedsettlement agreements were limited to challenging the length of theabatement period. _United States Steel Corp._, 4 BNA OSHC 2001 (ReviewCommission 1977). In _Southern Bell Tel. & Tel. Co_., 5 BNA OSHC 1405(1977), the Commission held that employees and unions have no right toobject to the Secretary’s motion to withdraw a citation.Subsequently, in its _Mobil Oil Corp._, 10 BNA OSHC 1905 (ReviewCommission, 1982) and _IMC Chem. Group_, 6 BNA OSHC 2075 (ReviewCommission, 1980) decisions the Commission overruled its holdings in_U.S. Steel_ and _Southern Bell_.In 1984 the Commission again reversed itself and overruled the _IMC_ and_Mobil Oil_ decisions in _Pan American World Airways_, _Inc_., 11 BNAOSHC 2003 (Review Commission 1984). In Pan Am, the Commission noted itsalignment with U.S. Courts of Appeal from eight circuits[[3]] which hadruled that \”a union lacks the right to object to the _adequacy of theabatement methods_ specified in a settlement agreement between theSecretary and an employer, and that a union may object only to the_reasonableness_ _of the abatement period_ specified by the agreement.\”(Emphasis added). The Commission further held that \”[all] decisions tothe contrary are overruled.\” Accord, _General Electric Co._, 12 BNAOSHC OSHC 1597 (Review Commission, 1985); _Willamette Iron_ _& SteelCo._, 11 BNA OSHC 1955 (1984) (employees may not object to a change incharacterization of a violation contained in a settlement agreement). However, in its 1985 _General Electric_ decision, the Commission alsonoted that, pursuant to Rule 10 (c), judge’s may direct that unions bepermitted to participate in any settlement negotiations. _GeneralElectric_, supra, at n.4.Rule 100 of the Commission Rules of Procedure, effectuating the aboveCommission decisions, explicitly provides that employee objections tosettlements are limited to the reasonableness of the abatement time. Rule 100 (b) states:b) _Requirements_. The Commission does not require that the partiesinclude any particular language in a settlement agreement, but doesrequire that the agreement specify the terms of settlement for eachcontested item, specify any contested item or issue that remains to bedecided … and state whether any affected employees who have electedparty status have raised an objection to the reasonableness of anyabatement time….29 CFR ? 2200.100 (b). Rule 100 (c) also declares, in pertinent part:(c) _Filing; Service and notice_. …When a settlement agreement isfiled with the Judge or the Executive Secretary, proof of service shallbe filed with the settlement agreement, showing service upon all partiesand authorized employee representatives…and the posting of notice tonon-party affected employees…. If the time has not expired under theserules electing party status, or if party status has been elected, anorder terminating the litigation before the Commission because of thesettlement shall not be issued until at least ten days after service toconsider any affected employee’s or authorized employee representative’sobjection to the reasonableness of any abatement time. The affectedemployee or authorized employee representative shall file any suchobjection within this time. If such objection is filed or stated in thesettlement agreement, the Commission or the Judge shall provide anopportunity for the affected employees or authorized employeerepresentative to be heard and present evidence on the objection, _whichshall be limited to the reasonableness of the abatement time_.(Emphasis added) 29 CFR ? 2200.100(c).While affected employees and their authorized representatives have theright to object to the reasonableness of an abatement period, theSecretary retains enforcement authority under the Act. _In CuyahogaValley Railway Co. v. United Transp. Union_, 474 U.S. 3; 106 S.Ct. 286;88 L.Ed.2d 2 (1985), the Supreme Court ruled that the rights created bythe Occupational Safety and Health Act are to be protected by theSecretary, who also has sole responsibility for its enforcement. TheCourt stated:It is the Secretary, not the Commission, who sets the substantivestandards for the work place, and only the Secretary has the authorityto determine if a citation should be issued to an employer for unsafeworking conditions. 29 U.S.C. ? 158. A necessary adjunct of that poweris the authority to withdraw a citation and enter into settlementdiscussions with the employer._Cuyahoga_, supra, at p. 288, citing _Donovan v. International union_,_Allied Industrial Workers (Whirlpool)_, 722 F.2d 1415, 1420 (8th Cir.,1983) ; _Donovan v. Occupational Safety and Health Review Com’n (MobilOil)_, 713 F.2d 918, 927 (2d Cir. 1983).[[4]] In reversing the SixthCircuit’s conclusion, the Court stated that the Sixth Circuit’s decision\”would discourage the Secretary from seeking voluntary settlements withemployers in violation of the Act, thus unduly hampering the enforcementof the Act.\” _Cuyahoga_, at 288.Recently, the Commission raised the general issue of union participationin settlement discussions in its very recent decision in _GeneralElectric Co._ (Docket No. 88-2265, August 29, 1990). In this 1990_General Electric_ decision, the Commission noted that precedentprovided for \”meaningful participation\” of employee and employeerepresentatives in the settlement negotiating process. However, theCommission in this recent _General Electric_ decision furtherrecognized, \”[t]he Commission has never articulated precisely what itmeant by ‘meaningful participation,’ nor has it set forth specificallyhow employees are to be included in settlement negotiations.\”The Commission in this recent _General Electric_ decision noted thereason for the ambiguity of these principles. While employees arelimited as a result of the _Pan American_ decision to objecting only tothe reasonableness of the abatement period, _Pan American_ \”did notdisturb the Commission’s holdings that employees may participate in thesettlement process.\” _General Electric_, at n.3.[[5]]As a result the _General Electric_ left intact the holding of _PanAmerican_ and left intact Rule 100 which \”obligates the Secretary andthe employer to ascertain whether the employees have any objection tothe abatement period, the sole issue on which they have the right toobject before the Commission.\” The Review Commission continued by stating:These comments, however, are not intended to suggest that there is nomechanism by which employees can be given an opportunity forparticipation in the settlement process. Employees may be given such anopportunity by allowing them to present their views on a settlementagreement to the other parties, and particularly to the Secretary,before the agreement is fully executed and filed with the judge. Thisprocedure would be consistent with other provisions of the Act thatgrant employees input into the decisions the Secretary makes in theinterest of safeguarding employee health and safety…Thus, consistentwith the overall scheme of the statute and the obvious importance ofensuring that employees have a chance to be heard, we are of the opinionthat when enforcement proceedings have been initiated before theCommission and the Secretary proposes to settle the case, any inputoffered by the affected employees should be received at some pointbefore a settlement agreement is executed between the Secretary and theemployer._General Electric_, supra.The Commission concluded by noting that if Complainant and Respondentreach a settlement notwithstanding the contrary views of employees ortheir representatives, the employees or their representatives may filean objection with the judge limited to the reasonableness of the periodof abatement. The Commission will examine a settlement agreement \”todetermine that the employees have had an opportunity to provide inputduring the formulation of the agreement. In this way, the legitimateinterest of employees in being heard on the terms of a proposedsettlement can be accommodated in a manner consistent with the limitedrights of employees or their representatives to object to a settlementagreement once that agreement has been filed with the Commission orCommission judge.\”_CONTENTIONS OF THE PARTIES_In the instant matter, both Complainant and Respondent recognize thatthe Review Commission has accorded employee representatives the right to\”meaningful participation in settlements.\” _Reynolds Metals Company_, 7BNA OSHC 1042 (1979). They contend, however, that such \”meaningfulparticipation\” is fully protected by the notice provisions of Rule 100.[[6]]The Complainant and Respondent further argue that the Supreme Courtdecision in _Cuyahoga_ is dispositive of the issue. In that case, theCourt held that the Secretary has unreviewable discretion to withdraw acitation charging an employer with violating the Occupational Health andSafety Act,\” and noted its agreement with decisions of eight otherCourts of Appeals which were consistent with this holding. _CuyahogaValley Ry. Co._, supra, at p. 287.[[7]]UPIU in the instant case does not dispute that the Complainant hasunreviewable prosecutorial discretion to withdraw a citation and enterinto settlement discussions with an employer pursuant to _Cuyahoga_. Nor does UPIU take issue with the Commission’s lack jurisdiction toreview a citation, penalty or settlement agreement between the Secretaryof Labor and an employer, except as to the reasonableness of theabatement period set forth in that agreement. _Delco ElectronicsDivision_, 13 BNA OSHC 1639 (1988); _Pan_ _American_, supra.The union argues, however, that the issue here, instead, is the ReviewCommission Judge’s power to require Complainant and Respondent to opensettlement discussions to all parties including employee parties andtheir representatives. UPIU cites Commission Rule 51 as the source ofauthority for the ALJ to invoke such an order. Rule 51 provides inrelevant part:? 2200.51 _Prehearing conferences and orders_…. In addition to the prehearing and scheduling procedures set forth inFed.R.Civ.P. 16, the Judge may upon his own initiative or on the motionof a party direct the parties to confer among themselves to considersettlement, stipulation of facts or any other matter that may expeditethe hearing….29 CFR ? 2200.51. This discretionary rule comports with Rule 100(a),which states that \”[s]ettlement is permitted and encouraged by theCommission at any stage of the proceedings.\” 29 CFR ? 2200. 100(a).[[8]] Further, the preamble to Rule 51 states that it applies toall parties. 51 Fed. Reg. 32009 (1986).The union advances several strong policy arguments in favor of allowingits participation in settlement discussions. These arguments have beenechoed by several commentators on the subject.[[9]] Most persuasive isits argument that allowing its participation in settlement discussionsis not the same as invoking judicial review of employee objections toterms in the settlement agreement other than those having to do with thereasonableness of abatement time. \”Employees want meaningfulparticipation _before_ the terms become final and ‘unreviewable’,\” theunion argues._DISCUSSION _Complainant’s and Respondent’s reliance on the _Cuyahoga_ decision asbeing dispositive here is misplaced. The facts in _Cuyahoga_ areclearly distinguishable. In _Cuyahoga_, the Complainant chose towithdraw the citation and accordingly there was no abatement period onthe settlement table. It is only when the abatement period is on thesettlement table that employees have the right to participate insettlement discussions.Objections to the abatement period under Rule 100 (c) must be based oncredible evidence. Much of such evidence will be within the possessionof either Respondent or Complainant and would presumably be discussedduring settlement. The right of affected employees and theirrepresentatives to object to the reasonableness of the abatement periodscan, in part, only be given substance if the employee or employeerepresentative is given a meaningful basis upon which to formulate suchan objection. Since the abatement period is necessarily part of anegotiated settlement, then the employees or their representatives oughtto be able to at least be present to observe the give-and-take ofsettlement discussions leading to the agreed upon abatement period. Aright without the opportunity to obtain information upon which toexercise that right is a meaningless right.Further, UPIU’s position, is consistent with the Commission’s recent_General Electric decision_.However UPIU’s contention that Commission Rule 51 is appropriate here isalso misplaced as to relying on this rule to the initiate settlementdiscussions since settlement discussions have already been initiated andnearly consummated. However, given _General_ _Electric_, it is alsoclear that in order to assure that affected employees are given properparticipation during settlement discussions, Rule 51 may be used todirect same.The Secretary notes that from the affidavit of OSHA Area Director C.William Freeman, it is clear that employee representatives haveconsistently had input into the negotiation of this matter. After thecitations were issued, his office staff met with representatives ofrespondent and representatives of employees, at which time Stephen Perrywas not an employee representative. OSHA solicited and received theviews and priorities of the employee representatives before reachingsettlement with respondent as to certain items.A second meeting with OSHA staff and employee representatives on theremaining sixteen items in dispute was held; on June 7 and 8, 1990,employee representatives were informed of an impending June 12settlement discussion to be held between OSHA staff and representativesof the respondent on these sixteen items. Employee representatives andrepresentatives of the respondent were also informed that a subsequentmeeting would be scheduled with employee representatives to discuss theJune 12 meeting and that no final decisions would be made on this matteruntil then. A June 13 meeting was held between OSHA staff, the OSHAActing Regional Administrator for Region I, Stephen Perry, and two unionrepresentatives from respondent’s mill. At this meeting, allsubstantive facts regarding the matters were reviewed; OSHA canvassedthe union and Mr. Perry’s views regarding hazards in the workplace,methods of abatement, and other items germane to subsequent negotiationswith respondent. The Secretary argues that employee representativescannot credibly argue that they have been denied the opportunity formeaningful participation in the negotiation and resolution of this matter._CONCLUSION _There is no explicit provision authorizing the Judge to direct thatsettlement negotiations be held between parties and employeerepresentatives.[[10]] Decisional law of the Circuit Courts of Appealsand the Review Commission as well as the Review Commission Rules ofProcedure consistently pronounce that an employee or employeerepresentative’s objection to a settlement agreement is limited to thatwhich concerns the reasonableness of the time for abatement. Given therecent _General Electric_ decision, it is clear that affected employeesand their authorized representatives shall participate in settlementdiscussions when they so request. As articulated above, that means at aminimum being present for all settlement discussions and at least anopportunity prior to settlement to present its views to the Secretary. Such is \”meaningful participation\”.It is unclear, given the facts presented, whether the union was giventhe opportunity for meaningful participation in the negotiatingprocess. It is therefore ORDERED:1. That within 20 days of the date of this order, Local 900 file anotice of election of party status pursuant to Rule 2200.20, noting itsdesignation of Stephen C. Perry as its representative pursuant to Rule2200.23(a)(3).2. That within 20 days of the date of this order, the authorizedemployee representative file affidavits or other evidence in support ofits assertion that it has been denied meaningful participation insettlement negotiations.3. If there is a factual dispute as to the actual extent ofparticipation of the affected employee’s representatives and if there isa desire by any party for a factual hearing on the merits regarding thisissue, any party may move for a hearing to resolve such factual disputes.4. If there is no factual dispute regarding participation of affectedemployee’s representatives and if in fact such representatives have beendenied participation consistent with this order, the parties have 15days after the filings complying with numbers 1 and 2 above, to fileproposed means to rectify such lack of participation.SO ORDERED.DELBERT R. TERRILL, JR.Judge, OSHRCDated: September 7, 1990Boston, MassachusettsSECRETARY OF LABOR,UNITED STATES DEPARTMENT OF LABOR,Complainant,v.BOISE CASCADE CORPORATION,RUMFORD MILL,Respondent.UNITED PAPERWORKERS’ INTERNATIONALUNION, LOCAL 900,Authorized EmployeeRepresentative.OSHRC Docket Nos. 89-3087 and 89-3088Region IORDER GRANTING CONSOLIDATION_AND APPROVING SETTLEMENT_Respondent in OSHRC Docket Nos. 89-3087 and 89-3088, by letter datedOctober 2, 1989, timely contested the Citations issued to it byComplainant on September 13, 1989. Respondent also contested thepenalties proposed by Complainant for the Citations.The parties have moved that these cases be consolidated for purposes ofsettlement. In addition, an executed Settlement Agreement addressingthis case has been received from the parties, and this Agreementaddresses all matters at issue between the parties regarding thesecases. The Motion and the Agreement having been read and considered, it isORDERED: (1) That the parties’ Motion is granted and that these casesare hereby consolidated for settlement purposes;(2) That the terms of the Settlement Agreement are approved andincorporated as part of this order;(3) That the Citation items are affirmed, modified, or vacated inaccordance with the terms of the Settlement Agreement; and(4) That this Order, pursuant to Section 12(j) of the Act, 29 U.S.C. ?661(j), shall become the final order of the Commission at the expirationof 30 days from the date of docketing by the Executive Secretary, unlesswithin that time a member of the Commission directs that it be reviewed.Dated this 23rd day of April, 1991.Richard DeBenedettoJudgeSECRETARY OF LABOR,UNITED STATES DEPARTMENTOF LABOR,Complainant,v.BOISE CASCADE CORPORATION,RUMFORD MILL,Respondent.UNITED PAPERWORKERS’ INTERNATIONAL UNION, LOCAL 900, Authorized EmployeeRepresentative.OSHRC Docket Nos. 89-3087 and 89-3088Region IMOTION FOR CONSOLIDATION_AND SETTLEMENT AGREEMENT_The parties, BOISE CASCADE CORPORATION, RUMFORD MILL (\”Boise\” or \”theCompany\”) and its successors; the SECRETARY OF LABOR, the UNITED STATESDEPARTMENT OF LABOR (\”the Secretary\” or \”OSHA\”); and the UNITEDPAPERWORKERS’ INTERNATI0NAL UNION, LOCAL 900, by their undersignedrepresentatives, have reached full and complete settlement of OSHRCDocket Nos. 89-3087 and 89-3088 under Rule 2200.100, the OccupationalSafety and Health Review Commission’s (\”the Commission\”) procedural ruleon settlement. Accordingly, the parties state as follows:1. The Commission has jurisdiction of this matter under Section 10 (c),29 U.S.C. ? 659 (c), of the Occupational Safety and Health Act of 1970,29 U.S.C. ?? 651-678 (\”the Act\”).2. The parties move, pursuant to Commission Rule 2200.9, that thesematters, OSHRC Docket Nos. 89-3087 and 89-3088, be consolidated forpurposes of settlement. The two matters have common parties and involvethe same overall worksite.3. The Secretary amends the Citations at issue in OSHRC Docket Nos.89-3087 and 89-3088 in accordance with the attached Appendices A, B, andC. In addition, all characterizations of alleged violations as\”willful\” in the Citations are amended by deleting all suchcharacterizations; and, except for the final abatement date for eachitem, all references in the Citations to an \”Abatement Schedule\” areamended by deleting all such references.4. The total proposed penalty for OSHRC Docket Nos. 89-3087 and 89-3088is amended to $750,000. One half of the penalty amount, as amended,shall be paid within 30 days of the Commission’s Final Order in thismatter; the remaining half of the amended penalty amount shall be paidby July 31, 1991. Both payments shall be made to \”DOL-OSHA\” and filedwith the Augusta, Maine, Area Office of OSHA.5. In addition to the proposed penalty, as amended, Boise will give agrant to the Center for Occupational Safety and Health in Maine in theamount of $125,000. The grant shall be by July 31, 1991.6. Boise specifically denies any and all allegations that it violatedthe Act. Nothing in this Agreement, including the Agreement itself,its execution, as well as any final order, is an admission or evidence,nor is it to be construed as an admission or treated as evidence, of anyfact or of any violation of the Act by Boise, other than in a proceedingbrought by the Secretary under the Act. Boise withdraws its notice ofcontest to the Citations, as amended; this withdrawal, however, is notintended to be, nor is it to be construed as, inconsistent in any waywith other language in this Agreement. For purposes of proceedingsbrought by the Secretary under the Act, the parties agree to treat theCitations in OSHRC Docket Nos. 89-3087 and 89-3088, as amended, asuncontested citations. This Agreement is being entered into solely toavoid further litigation and expense to the parties.7. There are no citation items in OSHRC Docket Nos. 89-3087 and 89-3088that remain to be decided by the Commission.8. The parties agree that this Agreement shall become a Final Order ofthe Commission. Included with this Agreement is a draft Order GrantingConsolidation and Approving Settlement. The form and content of thisdraft Order have been negotiated. The parties hereby consent to theentry of this draft Order so that the litigation of this matter may bebrought to an end.9. The parties agree to bear their own attorneys’ fees, and costs, andother expenses that have been incurred in connection with any stage ofthese proceedings up to and including the filing of this Agreement andentry of the Final Order in these matters.10. Boise certifies that the original Notice of Contest as well as allpleadings in OSHRC Docket Nos. 89-3087 and 89-3088, including a copy ofthis Agreement, have been served on affected employees at the RumfordMill in accordance with Commission Rule 2200.7.Respectfully submitted, this ___ day of ___1991.Robert G. GombarJONES, DAY, REAVIS & POGUEMetropolitan SquareCounsel for Respondent,BOISE CASCADE CORPORATIONRobert P. DavisSolicitor of LaborAlbert H. RossRegional SolicitorPaul J. KatzAttorneyU.S. DEPARTMENT OF LABORCounsel for Complainant,SECRETARY OF LABORStephen C. PerryRepresentativeUNITED PAPERWORKERS’INTERNATIONAL UNION, LOCAL 900FOOTNOTES:[[1\/]] The Secretary issued several citations alleging willful,repeated, serious, and nonserious violations. The citations totaledliterally hundreds of pages in length, with proposed penalties well inexcess of $1 million. Boise filed its notice of contest on October 2,1989. The parties originally informed the judge that they expected toreach a settlement by January 30, 1990. The judge thereafter grantedseveral requests for an extension of time to file a settlement agreement.[[2\/]] Boise’s employees are also represented by Local 2144 of theInternational Brotherhood of Electrical Workers (\”IBEW\”). The ordersentered by the Administrative Law Judge and some of the pleadings filedin these cases were served on the IBEW, as well as the UPIU, and duringthe course of these proceedings the IBEW was included as a party on thecase caption. However, the IBEW has not filed an election of partystatus or a notice of appearance. Although we invited the IBEW toparticipate in the oral argument of these cases, it chose not to do so,nor has it otherwise expressed any interest in these proceedings. Accordingly, we conclude that the IBEW should not be treated as anemployee party, and we amend the case caption accordingly.[[3\/]] This conclusion is not intended to diminish the authority granteda judge by Commission Rule 51, 29 C.F.R. ? 2200.51, to \”direct theparties to confer among themselves to consider settlement.\” The judgeretains authority to direct the parties to confer under Rule 51, butRule 51 does not permit the judge to order that employees be included insettlement conferences between the Secretary and the employer.We note that in _GE_, the judge issued an order directing that employeesbe included in settlement negotiations, and we briefly commented in ourdecision that under Rule 51, such an order was within the judge’sdiscretion. 14 BNA OSHC at 1766 n.4, 1990 CCH OSHD at p. 38,850 n.4. However, we did not in _GE_ decide whether employees are entitled as amatter of right to participate in settlement negotiations; rather, wesimply held that they should be given the opportunity to provide input. The purpose of this footnote was merely to support our view thatemployees should be allowed to give input. To the extent that thisfootnote may be construed as endorsing any particular method or degreeof employee input, it is dicta in the overall context of _GE_.[[4\/]] In view of our decision, we do not need to directly addresswhether Judge Terrill acted improperly in ordering that the UPIU couldnot speak during the settlement negotiations, _i.e_., that it waslimited to the role of a \”silent observer.\”[[5\/]] Commission Rule 20(a), 29 C.F.R. ? 2200.20(a), provides thatemployees and their representatives may elect party status to thelimited extent that their appearance relates to \”any matter in which theAct confers a right to participate.\” Commission Rule 100(b), 29 C.F.R.? 2200.100(b), provides that a settlement agreement must \”state whetherany affected employees who have elected party status have raised anobjection to the reasonableness of the abatement time.\”[[6\/]] Employees do not need to be given notice of every settlementdiscussion in order to effectuate their opportunity for input. In viewof the fact that the amicable resolution of contested citations will befacilitated by cooperation among all parties, we are hopeful thatemployees or their representatives concerned about their opportunity forinput will make their concerns known in a reasonable and prudent mannerin order to avoid undue delay of the settlement process. We emphasizethat the determination of when to consider a claim regarding employeeinput is within the sound discretion of the judge, who is responsiblefor ensuring that the proceedings are conducted in both an expeditiousand just manner. Commission Rule 2(c), 29 C.F.R. ? 2200.2(c). However, the judge must take into account that input can be received atany time prior to the execution of the settlement agreement.[[7\/]] One of the issues which we requested the parties to address atoral argument was whether the judge erred in ordering the Secretary andBoise to disclose all materials relating to the June 12, 1990 settlementdiscussion and in ordering their counsel to submit affidavits providinga chronology of all settlement discussions occurring since the citationswere issued. However, at oral argument counsel for the UPIU advised usthat the union had withdrawn its request for this information and thatit did not consider a ruling on the propriety of such a request to benecessary under the circumstances.[[1]] The affected employees did not send complete copies of the filingsand affidavits to Complainant in that the affected employees confirmedin a letter to Complainant dated October 10, 1990, that Complainant had\”misspoke\” when Complainant had indicated during a telephone conference[for which call affected employees were not present although effortswere made to have them present] that it had not received all of theaffected employees pleadings. Complainant did not dispute theconfirmation.[[2]] Complainant failed to timely file in accordance with theundersigned’s October 5, 1990 order its response dated October 17, 1990which, however, is nevertheless considered herein.[[3]] The now predominant and current role of judges as managers is notwithout criticism. Even proponents such as Resnick agree that this typeof \”judicial activism\” is not unlimited.[[4]] McKay notes that the term \”alternative dispute resolution\” hasbeen misunderstood as a system which must necessarily exist outside ofthe judicial system. He notes, however, that ‘[w]hile arbitration andmediation, for example, may be initiated and completed outside thejudicial framework, some of the most promising devices, such ascourt-annexed arbitration, summary jury trial, and the various processesof judge-assisted settlement, are all ADR processes within the judicialsystem.\” _Id_. at 822. The ADR concept is embodied in Commission Rule 101.[[5]] Once this matter is resolved on interlocutory appeal, and if thisdecision is essentially sustained by the Commission, affected employeeswill be further and likewise informed of any other meetings for whichthey were not present. Complainant and Respondent will not obligated todisclose to affected employees settlement discussions engaged in priorto affected employees obtaining party status. If different unions orgroups of affected employees obtained party status at different times,the date for obtaining party status shall govern which union or group ofaffected employees get what settlement discussion information. As aresult, it is understood that different unions or groups of affectedemployees will be entitled to different dated materials.[[1]] Rule 20 of the Commission Rules of Procedure provides for theelection of party status by affected employees and authorized employeerepresentatives. 29 CFR ? 2200.20.[[2]] Mark Rothstein notes that ? 10(c) is \”well known to be one of themost poorly drafted and error-filled sections of the Act. \”ROTHSTEIN,Occupational Safety and Health Law (2nd Ed.) ? 369, noting _H.K. PorterCo._, 1 BNA OSHC 1600 (1974) See also, Note, _Employee Participation inOccupational Safety and Health Review Commission Proceedings_, 85 Colum.L. Rev. 1317, 1320 (1985) (\”The unclear language of the OccupationalSafety and Health Act has led to vacillation by the Occupational Safetyand Health Review Commission and a division of opinion among thecircuits that have considered the extent to which employees mayparticipate in Occupational Safety and Health Review Commissionproceedings\”).[[3]] The Commission noted _Donovan v. OSHRC (Mobil Oil Corp._), 713F.2d 918 (2d Cir. 1983); _Donovan v. International_ _Union, AlliedIndustrial Workers (Whirlpool Corp._), 722 F.2d 1415 (8th Cir. 1983);_Donovan v. United Steelworkers (Monsanto_ _Co._), 722 F.2d 1158 (4thCir. 1983); _Donovan v. Oil, Chemical & Atomic Workers InternationalUnion (American Petrofina Co.)_, 718 F.2d 1341 (5th Cir. 1983); _Oil,Chemical & Atomic Workers International Union v. OSHRC (American CynamidCo.)_, 671 F.2d 643 (D C. Cir. 1982) cert. denied, 103 S.Ct. 206 (1983);_Marshall v. Sun Petroleum Products Co._, 622 F.2d 1176 (3rd Cir.) cert.denied 449 U.S. 1061 (1980); _Marshall v. OSHRC (IMC chemical Group)_,635 F.2d 544 (6th Cir. 1980); _Automobile_ _Workers v. OSHRC (Ford MotorCo._), 557 F.2d 607 (7th Cir. 1977).[[4]] The decision in _Mobil Oil_ elaborated the rights conferred by theAct upon the Secretary and employees pursuant to settlement of citations:[T]he legislative scheme of the Act does not evidence a Congressionalintent to subordinate the Secretary’s prosecutorial discretion inreaching settlement agreements to the rights of employees. Indeed,allowing employees to challenge the efficacy of an abatement plan in asettlement would constitute a continued prosecution of the citation byemployees and, hence, is proscribed under the Act.[[5]] The Commission also cautioned, however, that \”[n]evertheless, thescope of such participation must be viewed in light of the limitedopportunity employees have to object to fully executed settlementsbefore the Commission, as well as the limited role of the Commission inreviewing settlement agreements that have been filed with the Commissionor a Commission judge for approval.\” _General Electric_, at n.3[[6]] Respondent notes that there has been language in Review Commissiondecisions to suggest that such meaningful participation includes theright to take part in settlement negotiations. See, _General MotorsCorp., Terex Division_, 10 BNA OSHC 2020 (Review Commission, 1982). Respondent notes that the decision in _General Motors_ was directed forreview in order to determine whether the union had been given anopportunity \”for meaningful participation in the settlement process inaccordance with Rule 100 (c).\” In addition, that the basis for theReview Commission’s remand in _General Motors_ was its decision in_Mobil Oil Corp_. which was later overturned by the Second Circuit. See also, _Asarco, Inc._, 8 BNA OSHC 2200 (Review Commission, 1980);_ITT_ _Thompson Industries, Inc.,_ 6 BNA OSHC 1944 (1978).[[7]] The Supreme Court noted decisions of the Seventh, Eleventh,Eighth, Fourth, Fifth, Second, Third, and D. C. Circuits in reviewingthe Sixth Circuit’s decision in _Donovan V. United TransportationUnion_, 748 F.2d 340 (1984). The Supreme Court reversed the SixthCircuit’s holding that the prosecutorial discretion of the Secretaryends with the decision to issue a citation and that once an employer hasinitiated a contest, the Review Commission may hear all objectionsraised by employees or their representatives who have elected partystatus and may review the Secretary’s withdrawal of the citation.In the Second, Third, Fourth, Seventh, Eighth, and Eleventh Circuits,employee rights at the adjudicatory stage and in opposition tosettlements are limited to challenging the reasonableness of theabatement date whether the initial notice of contest is filed by theemployer or by employees. In the Fifth Circuit, however, employees whoelect party status after the employer initiates a notice of contest may\”litigate fully\” the merits of the citation and the terms of thesettlement agreement. _Donovan v. Oil, Chem, and Atom_. _WorkersIntern_, 718 F.2d 1341 (5th Cir. 1983). The Court analogized theposition of an employee in this case to an intervenor of right underRule 24 (a) of the Federal Rules of Civil Procedure, who \”is treated asif he were an original party and has equal standing with the originalparties.\”However, the Court ruled that once an employer withdraws its notice ofcontest pursuant to settlement, \”[t]he employee is in a positionanalogous to an intervenor in a civil lawsuit in which the originalparties have settled or sought dismissal.\” Thus, if the employerwithdraws its notice of contest, the Court stated that it wasconstrained by the decisions of the aforementioned Circuits to hold thatthe employees are limited to challenging the abatement period and theCommission loses jurisdiction to entertain the employees’ petition forreview of the settlement agreement’s terms.[[8]] This is also consistent with Fed.R.Civ.P. 16(a) which allows thecourt in its discretion to direct attorneys and unrepresented parties toappear before it for a pretrial conference for such purposes, amongothers, as \”(5) facilitating the settlement of the case.\” Rule 16(c)states that a subject to be discussed at a pretrial conference mayinclude, \”(7) the possibility of settlement or the use of extrajudicialprocedures to resolve the dispute.\”[[9]] Rothstein notes that the majority of employee challenges inadjudicatory proceedings involve the method rather than the time forabatement. \”Indeed,\” he notes, \”the time for abatement is irrelevant ifthe method is inadequate. Both the first and last sentences of ? 10(c)should be read together to mean that employees and unions may challengethe method of abatement in employee and employer contests.\” He notesthat a consistent reading of the first and last sentences of ? 10(c)would be resolved in this manner: \”[i]mplementation of an inadequateplan called for in a citation would mean that a citation is _never_abated. \”Never\” is too long and therefore constitutes an unreasonableabatement date under ? 10 (c). See ROTHSTEIN, supra, ? 369, 1988 pocketpart.See also 85 Columbia L. Rev. 1317, supra, in which the author proposesthat the Act gives the Review Commission jurisdiction to hear anyemployee objection to the terms of a settlement agreement in that theReview Commission has power to issue all final abatement orders. \”Because an employer-initiated contest must continue for [the ReviewCommission] to approve a settlement, employees, participating as\”parties,\” are entitled to object to all aspects of a settlement agreement.\”See, Judge Pollak’s dissent in _Marshall v. Sun Petroleum Products_, 622F.2d 1176 (1980).[[10]] Rule 101 concerning \”Settlement Judge procedure\”, whichprescribes procedures by which parties may obtain the assistance ofmediation by a Settlement Judge, is the only rule to directly addressthis issue. With both parties’ consent, a settlement conference may bescheduled. Rule 2200.101 (c) (2) states in part that \”The SettlementJudge may recommend that the attorney or other representative who isexpected to try the case for each party be present, and, without regardto the scope of the attorney’s or other representative’s powers, mayalso recommend that the parties, or agents having full settlementauthority, be present….\” This rule, however, is inapplicable to thecircumstances in the instant matter.”