“Docket No. 89-3087_89-3088 SECRETARY OF LABOR,Complainant, v. BOISE CASCADE CORPORATION, Respondent.UNITED PAPERWORKERS’ INTERNATIONAL UNION, LOCAL900,Authorized Employee Representative.Docket Nos. 89-3087 & 89-3088DECISION AND ORDERBEFORE: FOULKE, Chairman; MONTOYA and WISEMAN,Commissioners. BY THE COMMISSION:These cases present issues relating to theapplication of our recent decision in General Electric Co., 14 BNA OSHC 1763, 1990CCH OSHD ? 29,072 (No. 88-2265, 1990) (\”GE\”), in which we held that whenthe Secretary and the employer seek to settle a case which is pending before theCommission, any affected employees or their representatives who have elected party statusshould be given the opportunity to offer their input to the proposed settlement before itis executed and submitted to the Commission or a judge for approval.\u00a0 See NationalSteel & 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 Secretaryconducted an inspection over a period of several months at a pulp and paper mill inRumford, Maine, operated by Boise Cascade Corporation (\”Boise\”), after which theSecretary issued a number of citations alleging numerous violations of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-78 (\”the Act\”).\u00a0 Boiseand the Secretary then engaged in settlement negotiations over an extensive period oftime.[[1\/]]\u00a0 In response to a joint request by the Secretary and Boise for anextension of time to file a settlement agreement, the United Paperworkers InternationalUnion, Local 900 (\”UPIU\”), which had elected party status as the representativeof affected employees,[[2\/]] asserted that it had not been allowed to participate in thesettlement discussions between the Secretary and Boise.After receiving briefs from each party on thequestion of the right of a union party to participate in settlement negotiations, as wellas affidavits, Administrative Law Judge Delbert R. Terrill issued the order that is beforeus now.\u00a0 Essentially, Judge Terrill interpreted our decision in GE asestablishing a minimum level of employee involvement in the settlement process.\u00a0 Inhis order, Judge Terrill viewed GE as entitling employees or their representativesto be present during all settlement negotiations, including conferences conducted bytelephone.\u00a0 However, the judge concluded that GE does not require thatemployees or their representatives actually be allowed to speak at those negotiations, i.e.,employees can be limited to the role of \”silent observers.\”\u00a0 He thereforeordered that the UPIU be given reasonable notice of any future settlement discussions sothat it would have an opportunity to be present at such discussions.\u00a0 The judge alsofound from the parties’ affidavits that the UPIU was not present at a settlementdiscussion held on June 12, 1990, nor was it informed of the substance of that discussion.\u00a0 He further found that the record was not clear as to the extent of any priorsettlement discussions or the degree to which the UPIU had been present at any suchnegotiations. Accordingly, he granted a request by the UPIU for disclosure of informationregarding these settlement negotiations.Both Boise and the UPIU filed petitions forinterlocutory review.\u00a0 Boise takes issue with Judge Terrill’s orders directing thatthe UPIU be included in settlement negotiations and that information regarding thesettlement negotiations be disclosed to the UPIU. Boise also disputes the judge’s factualfindings that the union was not allowed to participate in those negotiations.\u00a0 TheUPIU excepts to the judge’s order limiting it to the status of a ”silent observer.\”\u00a0 We granted both petitions and, in view of the importance of these issues to theenforcement of the Act, ordered oral argument in these cases.\u00a0 For the reasons thatfollow, we conclude that Judge Terrill erred, and we set aside his order.Essentially, Boise contends that Judge Terrillmisapplied our decision in GE.\u00a0 In Boise’s view, while GE expresses theprinciple that employees or their representatives should have the opportunity to be heardwhen an employer and the Secretary seek to settle a case, GE does not authorize thejudge to inject himself into the settlement process by ordering any particular type ormanner of employee participation.\u00a0 Furthermore, Boise asserts that the judge shouldnot make any determination as to whether employees have been given the opportunity to beheard until after the settlement agreement is executed and submitted for approval. \u00a0The Secretary argues in support of Boise’s position and asserts that it is his practice toreceive views from affected employees or their proposal.\u00a0 Conversely, the UPIUcontends that the right to elect party status under the Act entitles employees toparticipate as full equals to the Secretary and the employer in the settlement processand, therefore, argues that employees or their representatives have the right to bepresent and to express their views at all settlement negotiations.In GE, we noted that the Act reflectsCongress’ determination that while the Secretary has the ultimate responsibility forenforcing the Act, employees have a legitimate interest in providing input to theSecretary when he makes decisions on their behalf.\u00a0 At the same time, however, weacknowledged the well-settled case law that the Commission and affected employees or theirrepresentatives have only limited roles in the settlement process.\u00a0 14 BNA OSHC at1764-65, 1990 CCH OSHD at pp. 38,849-50. Accordingly, we sought in GE to balancethe interests of employees in having their views heard against the limitations placed onthe Commission’s authority when the Secretary and employer propose to settle a case.\u00a0 We therefore held that the Secretary and employer should inform employees or theirrepresentatives that settlement negotiations are being conducted and should receive theinput of employees or their representatives before executing any settlement agreement.\u00a0 In addition, we indicated that after a settlement agreement is executed andsubmitted for approval by the Commission or judge, it would be examined to determinewhether employees were given an opportunity to provide input during its formulation.\u00a0 We did not expressly address the issue raised here of whether the Commission or aCommission judge can direct that the employees’ input be received in any particular waythrough the issuance of orders enforceable in the Commission proceeding.\u00a0 We also didnot rule on whether the determination of the extent of employee input may be made beforethe settlement agreement is submitted for approval.\u00a0 However, we believe that thebasic principles underlying the enforcement of the Act that we referred to in GEprovide a framework for resolving these issues as well.While neither the Act nor its legislativehistory explicitly address the role of employees or their representatives in thesettlement of a case pending before the Commission, it is clear that Congress intended andexpected that affected employees would have an opportunity to be heard during theadjudicatory process.\u00a0 Thus, Congress required in section 10(c) of the Act, 29 U.S.C.? 659(c), that affected employees or their representatives be afforded an opportunity toparticipate as parties in commission proceedings. Furthermore, the history of the Act andits numerous provisions regarding the participation of employees in other contexts evincea plain understanding on the part of Congress that attainment of the Act’s goal of a safeand healthful workplace requires a cooperative endeavor that can only be accomplishedthrough the assistance and involvement of employees.For example, the legislative history of the Actclearly reflects Congress’s concern that employees be consulted at the very inception ofan enforcement proceeding, that is, during the inspection of their employer’s worksite.\u00a0 As the House Committee on Education and Labor stated, \”If an inspectordetermines that a danger to health and safety exists, he should be able to advise aworker’s representative or be able to question workers, who ought to be permitted todisclose their concern with an alleged hazardous work area.\”\u00a0 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 Occupational Safety and HealthAct of 1970, at 852 (1971).\u00a0 See S. Rep. 1282, 91st Cong., 2d Sess. 11 (1970),id. at 151 (\”appropriate degree of involvement of employees themselves in thephysical inspections of their own places of employment\”).\u00a0 The Act’s initialdeclaration of \”Congressional Findings and Purpose\” in several places alsorefers to the need to consult with employees.\u00a0 Congress indicated, among otherthings, that the objectives of the Act would be met \”by encouraging employers andemployees in their efforts to reduce the number of occupational safety and health hazardsat their places of employment, and [by stimulating] employers and employees to institutenew and to perfect existing programs for providing safe and healthful workingconditions.\”\u00a0 Section 2(b)(1), 29 U.S.C. ? 651(b)(1).\u00a0 Similarly, Congressstated that the Act was intended to \”[build] upon advances already made throughemployer and employee initiative for providing safe and healthful working conditions\”and to foster \”joint labor-management efforts to reduce injuries and disease arisingout of employment.\”\u00a0 Section 2(b)(4), (13); 29 U.S.C. ? 651 (b) (4), (13).\u00a0 As we pointed out in GE, the clear intent of Congress that the views ofemployees be taken into consideration is implemented in specific statutory provisionswhich allow employees to participate both in the development of occupational safety andhealth standards and in the enforcement of the Act against a particular employer,including the opportunity to request an inspection, to accompany an inspector, and toconsult with the inspector regarding possible violations of the Act.\u00a0 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 is essential toeffectuating the purposes of the Act does not establish that Congress intended employeesto constitute a separate and distinct enforcement authority under the Act.\u00a0 On thecontrary, as the Sixth Circuit observed in Marshall v. OSHRC (IMC Chem. Group), 635F.2d 544, 550-51 (6th Cir. 1980), the Act does not grant employees a private right ofaction.\u00a0 Rather, prosecutorial discretion in the enforcement of the Act is vestedsolely in the Secretary.\u00a0 Id.; Donovan v. OSHRC (Mobil Oil Corp.), 713F.2d 918, 927 (2d Cir. 1983).\u00a0 Accordingly, it is the Secretary who is responsiblefor protecting the interest of employees in safe and healthful working conditions.\u00a0 CuyahogaValley Ry. v. United Transp. Union, 474 U.S. 3 (1985).\u00a0 As the courtstated in Oil, Chem. & Atomic Workers Int’l v. OSHRC (American Cyanamid Co.),671 F.2d 643, 649 (D.C. Cir.), cert. denied, 459 U.S. 905 (1982), \”the Actcreates public rights that are to be vindicated by the Secretary through governmentmanagement and enforcement of a complex administrative scheme.\”\u00a0 Thus, whileCongress expected that employees would be heard during the enforcement process, Congressintended the Secretary to ensure that the views and concerns of employees have been takeninto consideration in the exercise of his prosecutorial discretion.\u00a0 See IMC Chem.Group, 635 F.2d at 551, in which the court cited with approval the Commission’sstatement in Southern Bell Tel. & Tel. Co., 5 BNA OSHC 1405, 1406, 1977-78 CCHOSHD ? 21,840, p. 26,295 (No. 10340, 1977) that \”Congress intended to preludeemployees and their representatives from usurping the Secretary’s prosecutorialdiscretion.\”The discretion to settle a case pending beforethe Commission is an adjunct of the Secretary’s prosecutorial and enforcement authority.\u00a0 American Cyanamid, 671 F.2d at 650 (\”necessarily included within theprosecutorial power is the discretion to withdraw or settle a citation issued to anemployer.\”)\u00a0 We conclude that since Congress intended the interests of employeesto be effectuated through the Secretary’s judgment as the enforcing authority under theAct, the entry of a Commission order directing either the method or degree of employeeinput into the process of a settlement that is ongoing between the Secretary and theemployer would contravene the Secretary’s enforcement authority and discretion.[[3\/]]Our conclusion that the Commission is not empowered to issue an order regarding the methodor degree of employee input during the settlement process is supported by decisionsaddressing the difference between employee participation when there is ongoing litigationbetween the Secretary and the employer and the role of employees when the Secretary andemployer seek to settle rather than litigate.\u00a0 At oral argument, counsel for the UPIUreferred us to decisions holding that, in cases in which the merits of the Secretary’senforcement action are in dispute and are being litigated before the Commission, employeeparties are fully co-equal to the Secretary and employer and have the same right tolitigate all the disputed issues.\u00a0 E.g., Donovan v. International Union, AlliedIndustrial Workers (Whirlpool Corp.), 722 F.2d 1415, 1419 (8th Cir. 1983); Donovanv. Oil, Chemical and Atomic Workers International (American Petrofina Co.), 718F.2d 1341, 1350 (5th Cir. 1983), cert. denied, 466 U.S. 971 (1984); AmericanCyanamid, 671 F.2d at 647.\u00a0 However, these cases also recognize that the roleof employee parties in the settlement process is subordinate to that of the Secretary andemployer.For example, the Eighth Circuit reasoned thatbecause the employer invokes Commission review of the merits of citation items, the unioncan litigate matters other than the reasonableness of the abatement period only if thosematters are in dispute between the Secretary and the employer.\u00a0 722 F.2d at 1421.\u00a0 That holding is consistent with the view the Commission previously stated inSouthern Bell:[I]f the employer contests a citation, the union can become a party to the hearing, but ifthe employer does not contest, the only way the union can become a party. . . is if itcontests the abatement period.\u00a0 [Where] the union has become a party in a proceedinginitiated by the employer’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).\u00a0 With respect to the actual mechanism by which a settlementis achieved between the Secretary and the employer, the Fifth Circuit expressed agreementwith the Second Circuit in Mobil oil that \”employers would only be discouragedfrom entering settlement negotiations with the Secretary if they knew furtherproceedings before the Commission could be required.\”\u00a0 718 F.2d at 1353, quoting713 F. 2d at 927 (emphasis added).\u00a0 Similarly, in describing the enforcementauthority of the Secretary, the Supreme Court held that \”a necessary adjunct of thatpower is the authority to withdraw a citation and enter into settlement discussionswith the employer.\”\u00a0 Cuyahoga Valley, 474 U.S. at 7 (emphasis added).Accordingly, we conclude that the enforcementscheme created by the Act, which gives the Secretary responsibility for safe-guarding theinterests of employees in the exercise of his prosecutorial discretion, precludes theCommission from directing the method and degree of involvement of employees in anysettlement proceedings through the issuance of Commission orders.\u00a0 Clearly, JudgeTerrill exceeded his authority by his order requiring the Secretary and Boise to allow theUPIU to be present during their settlement negotiations.[[4\/]]\u00a0 His order is contraryto the enforcement scheme established by the Act and is therefore set aside.However, we emphasize that while we cannot orderthe method by which the Secretary and employer receive the views of employees or theamount of input they receive, consistent with the principles expressed in GE weexpect them to make every effort to provide employees with the opportunity for input inthe settlement process as much as practicable.\u00a0 We recognize that the manner in whichthe Secretary and employer conduct their settlement negotiations may vary from case tocase.\u00a0 In a relatively simple case involving only a few comparatively minorviolations, the settlement process will likely not take the same form as in a caseinvolving numerous and complex citations.\u00a0 It is conceivable that in some cases thesettlement process will consist only of correspondence or telephone conversations betweencounsel for the Secretary and employer, in contrast to proceedings, such as those beforeus here, in which settlement requires extensive and prolonged face-to-face discussions.\u00a0 Thus, practical and effective methods of receiving the input of employees will varydepending upon the circumstances of the case.We note that at oral argument, counsel for theSecretary assured us that it is the policy of the Secretary to confer with employees orgive them the opportunity to confer prior to the finalization of a settlement agreement.\u00a0 As part of this process, counsel for Boise suggested that employees be given a copyof a draft settlement agreement before it is submitted for approval by the judge so thatemployees can indicate whether they have any objections to the proposed settlement. \u00a0In certain cases, this would be an appropriate way for the Secretary and the employer toobtain input from employees.\u00a0 However, it is not the only way to receive employeeinput. Instead, we emphasize again that the method and degree in which affected employeesor their representatives will be heard is the responsibility of the Secretary. \u00a0 Weintend these remarks as guidance to the Secretary in exercising his discretion as theprosecutorial authority under the Act.Nevertheless, while the Act vests authority inthe Secretary to protect the interests of employees, it does not grant the Secretarydiscretion that is wholly unlimited.\u00a0 Generally speaking, the Act recognizes someconstraints on the Secretary’s discretion and provides that the Secretary’s exercise ofhis discretion is subject to review.\u00a0 For example, section 8(f) (2), which allowsemployees to notify an inspector of any violation which they believe exists in theirworkplace, requires the Secretary \”to establish procedures for informal review of anyrefusal by a representative of the Secretary to issue a citation with respect to any suchalleged violation.\” Furthermore, section 10(c) of the Act also supports theproposition that the Secretary’s exercise of his prosecutorial discretion is reviewable.\u00a0 As we noted in GE, it is well-settled that employees or theirrepresentatives may object before the Commission to the substantive terms of a settlementagreement with respect to the reasonableness of the period of time prescribed forabatement of a violation.\u00a0 14 BNA OSHC at 1765, 1990 CCH at p. 38,849.\u00a0 Thisopportunity, which is recognized in the Commission’s rules as well, [[5\/]] arises from aspecific provision of section 10(c) which allows employees or their representatives tocontest a citation on the ground that the abatement period set forth is unreasonable.\u00a0 Thus, while the Secretary generally has authority to act on behalf of employees,employees have an independent right to be heard where there is an objection to theabatement period.\u00a0 Mobil Oil, 713 F.2d at 928-29.\u00a0 Similarly, theSecretary’s prosecutorial discretion does not take precedence over the rights of employeesunder section 11 of Act, 29 U.S.C. ? 660(a), which entitles any \”person\”aggrieved by an order of the Commission to file a petition for review in the courts ofappeals.\u00a0 Employees or their representatives have the right to appeal an adverseruling of the Commission even if the Secretary, in the exercise of his discretion, choosesnot to seek review.\u00a0 American Cyanamid, 671 F.2d 648-49.In view of the clear importance attached byCongress to employee input, we conclude that while we cannot order the method and degreeby which the Secretary and employer receive the views of employees, we can review theSecretary’s actions in this regard to determine whether the Secretary has abused hisdiscretion.\u00a0 We also note that the limited right of employees to object to thereasonableness of the abatement period in a settlement agreement once that agreement hasbeen submitted to the Commission or judge for approval is distinct from the opportunity toprovide input on all matters pertaining to the settlement before the agreement isfinalized.\u00a0 Therefore, we also reject Boise’s contention that during the settlementprocess, employees may only be heard with respect to the reasonableness of the abatementperiod.\u00a0 National Steel, 14 BNA OSHC at 1868, 1990 CCH OSHD at p. 38,920; GE, 14 BNAOSHC at 1766 n.5, 1990 CCH OSHD at p. 38,851 n.5.As we have indicated, the Secretary assured usat oral argument that his policy is and has been to afford employees an opportunity topresent their input before he enters into any settlement agreement.\u00a0 In view of theSecretary’s latitude to define the method and degree of employee input that he willreceive in any particular case, we conclude that it will not be proper for the judge toinquire into the provision of employee input except in unusual or egregious cases where itappears that the Secretary has contravened his stated policy by denying employees anopportunity for input.\u00a0 In such a situation, the absence of an opportunity foremployees to offer input would in our view constitute an abuse of discretion on the partof the Secretary.\u00a0 We emphasize that because of the limited authority of theCommission to review settlement agreements, the judge is obligated to avoid any undueinterference in the settlement process.\u00a0 We therefore conclude that, except in thoserare cases where there clearly appears to be an abuse of discretion by the Secretary, theproper role for the judge is to advise the Secretary and employer of any claim thatemployees have not been given an opportunity for input so that the Secretary and employermay then reconsider their positions in light of the claim.The judge must have discretion to entertainclaims that employees have not been heard in the settlement process before thesettlement agreement is finalized and executed by the Secretary and employer.\u00a0 Inthat way, the Secretary and employer can take the employees’ claims into consideration,and the Secretary will be better able to fulfill his responsibility to ensure thatemployees have had an adequate opportunity to be heard. [[6\/]]\u00a0 Considering thatemployee input will only be beneficial if it is received before the Secretary and employerhave reached a final decision on the terms of a settlement, we think it would also beunwise to adopt the rule, advocated by Boise, that a judge must wait until after hereceives the executed settlement agreement before addressing any concerns of the employeesregarding the degree of their input into the settlement process.\u00a0 Accordingly, weconclude that Judge Terrill 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 anopportunity to provide input in this matter is clearly without merit.\u00a0 The recordreflects that the UPIU was substantially involved in these proceedings from theirinception.\u00a0 Representatives of the UPIU were present both at the closing conferencefollowing the inspection and at an informal conference with the Secretary and Boise afterthe citations had been issued.\u00a0 The UPIU at that time advised the Secretary and Boisethat it wished to be granted party status at any Commission proceeding that arose fromthese citations.\u00a0 Thereafter, all pleadings, as well as Judge Terrill’s orders, wereserved on the UPIU.\u00a0 While the UPIU was not present at the actual settlementnegotiations between Boise and the Secretary, an affidavit from Stephen C. Perry, whoappeared on behalf of the UPIU in these proceedings, concedes that \”on severaloccasions, after settlement negotiations commenced, [he] received aspects of settlementnegotiations.\”\u00a0 It is also undisputed that during November 1989 Boise conducteda series of meetings at the worksite with representatives of the UPIU for the purpose ofaddressing approximately 800 citation items which remained unresolved following theinformal conference.\u00a0 According to the unrebutted affidavits of Jerry T. Fields,Boise’s corporate safety and health director, and Thomas J. Wheeler, who at the time wassafety and health coordinator for the Rumford plant, a consensus was reached regarding themethods and time for correcting these violations.\u00a0 As part of this consensus,employee representatives stated their priorities for addressing the various violations.\u00a0 Shortly thereafter, Fields and Wheeler as well as the UPIU representatives met withthe Secretary’s acting area director and other OSHA personnel to present the results andrecommendations resulting from the management\/employee meetings.On June 12, 1990, the Secretary and Boise metagain to discuss issues which remained outstanding as of that date.\u00a0 In an unrebuttedaffidavit, the Secretary’s area director, C. William Freeman, averred:That, on June 7 and 8, 1990, members of hisstaff had advised employee representatives of the meeting scheduled for June 12, 1990 andinformed representatives that a latter [sic] meeting would be scheduled with them todiscuss the June 12th meeting.\u00a0 On June 12th his staff spoke with Mr. Perry and setup a meeting on June 13th at the Regional office.\u00a0 Also on June 7 and 8, 1990, OSHAadvised the employee representatives that no final decisions would be made in this matteruntil he had met with them.\u00a0 This was explained at the meeting on July 12, 1991 torepresentatives of the Respondent.\u00a0 In point of fact, no final decisions were (havebeen) taken until he consulted with Mr. Perry and other employee representatives.That, on June 13, 1990, he, two of his staff,and the OSHA Acting Regional Administrator for Region I met with Mr. Stephen Perry, atBoston, Massachusetts for the purpose of obtaining from Mr. Perry and two unionrepresentatives from Respondent’s Rumford, Maine mill the representatives’ input into thismatter, to allow for an informed evaluation of this matter (and to assist in theformulation of policy and 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 union representative[s]all substantive facts regarding the matters at issue.That, on June 13, 1990, OSHA verified with Mr.Perry and the two union representatives several assertions made by the Respondent on andprior to June 12, 1990.That, on June 13, 1990, OSHA obtained anddiscussed at length the positions of Mr. Perry and the two union representatives as tohazards existing in the workplace in question, methods which might be implemented to abatethese hazards, their priorities in this matter, and the like, all of which werespecifically considered in [OSHA’s] subsequent formulation of positions with [its] counselfor subsequent negotiation with the Respondent.Since it is undisputed that on several occasionsthe Secretary informed the UPIU of the substance of the settlement discussions with theemployer, and the UPIU was given general opportunities to fully discuss its concerns withrespect to the citations, the UPIU has been afforded an opportunity for input in a mannerconsistent with this decision. [[7\/]]At the time of the June 12, 1990 settlementmeeting there was an outstanding order of Judge Terrill directing Boise and the Secretaryto submit their settlement agreement by July 12, 1990.\u00a0 On that date, however, JudgeTerrill directed that settlement negotiations cease pending his ruling on the issue of theright of the UPIU to be present at the settlement negotiations.\u00a0 The judge alsodenied a request by the Secretary and Boise for an extension of time of slightly less thanone month, from July 12, 1990, to August 9, 1990, to submit their settlement agreement. Inour order granting interlocutory review, we also stayed all settlement discussions pendingour decision. In view of the fact that settlement negotiations have been suspended sinceJuly 12, we conclude that the additional extension of time requested by Boise and theSecretary should be granted.Accordingly, Judge Terrill’s order is set aside,and the stay we previously entered is vacated.\u00a0 Judge Terrill is instructed to allowthe Secretary and Boise an additional period of 25 days to submit a settlement agreementfor approval.\u00a0 We emphasize that in view of our determination that an opportunity foremployee input has been provided consistent with the Secretary’s policy, the judge is toconduct no further inquiry into the matter of employee input and is to issue no additionalorders relating to the provision of input by the UPIU.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerDated: February 1, 1991MONTOYA, Commissioner, concurring:I reluctantly join in the majority’s opinion in this case.\u00a0 I have no quarrel withthe outcome here since I fully agree with my colleagues’ conclusion that the Secretary andBoise have already provided UPIU with significant opportunities for input into theirprospective settlement agreement, and they have stated their intention in oral argument tocontinue doing so until a final agreement is executed and filed with the judge.\u00a0 I amdisturbed, however, by the precedent of the courts of appeals regarding the role of theCommission and its judges when union or affected employee parties raise the claim thatthey have been denied an opportunity for input into the settlement process.\u00a0 From apublic policy viewpoint, I can see a great deal of merit to UPIU’s arguments that theCommission and its judges should take a more active role in protecting affected employeeinterests and assuring that they are given an opportunity to provide input into thesettlement process.\u00a0 If I were \”writing on a clean slate,\” I wouldundoubtedly support a position much closer to UPIU’s position than the position taken bythe Commission in this case.\u00a0 Unfortunately, I am not writing on a clean slate, butam severely constrained by well established case law restricting the authority of theCommission in relation to affected employee objections to settlement agreements.\u00a0 SeeDonovan v. OCAW (American Petrofina Co.), 718 F. 2d 1341, 1351-53 (5th Cir. 1983), cert.denied, 466 U.S. 971 (1984) (court adopts narrow interpretation of right of employeesto participate in the settlement process in view of case law consistently supporting thatposition).\u00a0 I therefore regretfully conclude that I can go no further in assertingCommission authority in this area than this decision has gone.Velma Montoya CommissionerSECRETARY OF LABOR, Complainant, v. BOISE CASCADE CORPORATION Respondent, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,LOCAL 2144 Affected Employees, UNITED PAPERWORKERS’ INTERNATIONAL UNION, LOCAL 900 Affected Employees,Docket Nos. 89-3087 & 89-3088ORDER STATEMENT OF CASEOn September 7, 1990, an order was issueddirecting that affected employees be offered the opportunity of being present as silentobservers during all future settlement negotiations.\u00a0 Also, the order provided thatany party could seek a hearing if there was a factual dispute as to the extent of theparticipation of affected employees here in the settlement process.\u00a0 On September 17,1990, Respondent requested reconsideration and a stay (while noting its intent to seek aninterlocutory appeal) of the September 7, 1990 order.\u00a0 On September 18, 1990, anorder was entered granting the stay of the implementation of the September 7, 1990 order.On September 26, 1990, affected employees fileda Verified Motion for Reopening, Access to Information, and Other Relief and affidavits oftheir representatives asserting that as a party they were not present during settlementdiscussions as envisioned by the order dated September 7, 1990.\u00a0 Further, theaffected employees requested to be present at all future settlement discussions and that ahearing be convened to resolve matters at issue.\u00a0 On September 27, 1990, affectedemployees filed their opposition to the motion for reconsideration.On October 3, 1990, Complainant filed itspleading supporting Respondent’s request for reconsideration and otherwise essentiallyreiterating its initial brief.\u00a0 On October 4, 1990, Respondent filed a letter notingthat its interpretation of the September 18, 1990 stay resulted in the affidavits of theemployees being a nullity given that they were not part of affected employees response toRespondent’s Motion for Reconsideration but were attached to a Verified Motion forReopening, Access to Information and Other Relief.\u00a0 Further, Respondent requesteddirection of the court as to the interpretation of the September 18, 1990 stay and whethera response was required to the motion of the employees.On October 5, 1990, an order was issuedclarifying that the stay in the September 7, 1990 order only related to requirement thataffected employees be allowed to participate as silent observers in future settlementdiscussions.\u00a0 The order also required that by October 10, 1990, the affectedemployees provide complete copies of their September 26 and 27, 1990, pleadings andsupporting affidavits to Complainant and Respondent.\u00a0 Finally, the order also grantedComplainant and Respondent until October 17, 1990, to file their responses.On October 10, 1990, the affected employeescomplied with the order. [[1]]\u00a0 On October 17, 1990, Respondent filed its response.Respondent requested that its Motion for Reconsideration be granted in its entirety.\u00a0 Noting that the legal issues raised in its Motion were ripe for decision and thatit should not be required to engage in a time consuming costly \”diversion\” that\”may well prove to be unnecessary\”, Respondent urged that its Motion be ruled onbefore any factual determination is made based on the affidavits submitted regarding theextent of affected employee participation in the settlement process.\u00a0 Accordingly,Respondent opposed the affected employees request for hearing to determine whether therehas been meaningful participation by affected employees in this matter.Also on October 17, 1990, Complainant filed itsresponse to the Verified Motion.[[2]]\u00a0 Complainant’s response rebutted the Perry andPatrick affidavits relying upon the Freeman affidavit.\u00a0 On October 17, 1990, giventhat the undersigned had yet to rule on Respondent’s Motion for Reconsideration, theCommission denied Respondent’s Petition for Interlocutory Review without prejudice.On October 18, 1990, Respondent initiated atelephone conference call among and between the parties including a representative ofaffected employees.\u00a0 Respondent proposed, with Complainant concurring, that thesettlement discussion process be restarted with affected employees being present and ableto participate fully, and not simply as silent observers.\u00a0 Affected employees,acknowledging that such was a good first step, requested that before restarting thesettlement process they be informed regarding the substance of prior settlementdiscussions.\u00a0 Respondent countered stating that on only June 12, 1990 weresubstantive issues discussed during which affected employees were not present and offeredto provide affected employees memoranda which would inform affected employees of the June12, 1990 discussions.\u00a0 When questioned by the undersigned as to whether there wasagreement that June 12, 1990 was the only date that affected employees were not presentfor settlement discussions, there was dispute as to this and other facts and an impassewas reached.As articulated then, the undersigned noted thatRespondent had made a convincing case for resolving the legal issues first and indicatedthe court’s intention to issue this decision.On October 19, 1990, responding to Respondent’sconcern about \”reinventing the wheel\” yet while reserving the right to requestsuch information in the future, affected employees (UPIU) withdrew their request for\”all notes and memoranda relating to settlement discussions so far\”. \u00a0Further, in order to preclude further delay of the settlement process, UPIU requested fullparticipation in future settlement discussions.\u00a0 Finally, UPIU clarified that thePerry and Patrick affidavits made assertions relevant only to the time periods theindividuals were designated as representatives of affected employees.APPLICABLE LAW, RULES AND REGULATIONSThe issue here is one of first impressioninterpreting the Commission’s decision in General Electric Co., OSHRC Docket No.88-2265 (August 29, 1990).\u00a0 In addition to the applicable law, rules and regulationsrecited in the September 7, 1990 order which are incorporated herein, the AdministrativeProcedure Act (\”APA\”) [5 U.S.C. 554 (c)] also requires that agencies affordinterested parties the opportunity to provide input during the settlement process. \u00a0Further, Commission Rule 101 provides an existing Commission mechanism to resolve issuesarising during the settlement process.CONTENTIONS OF THE PARTIESRespondent argues that the September 7, 1990order exceeds the intent of the Commission’s ruling in General Electric (\”GE\”)and that GE only requires affected employee \”input\” at \”some point before asettlement agreement is executed between the Secretary and the employer\”. \u00a0Respondent further argues that whether affected employees had a \”meaningfulopportunity\” to participate in the settlement process is a determination to be madeby the administrative law judge only after the complainant and a respondent havesubmitted their settlement to the judge.Otherwise, Respondent contends that the judge iscast in the role as referee which Respondent asserts to be both \”improper andimpractical\” and an \”unnecessary intrusion\” into the settlement process.Respondent also opposes the Verified Motion ofaffected employees arguing that it is a \”sweeping request… totally withoutbasis\”. Respondent argues that affected employees are here essentially requestingdiscovery.\u00a0 Accordingly, Respondent argues that their requests for information becontrolled by the rules of discovery.\u00a0 Finally, Respondent argues that the motion byseeking information beyond the scope of discovery amounted to a \”fishingexpedition\” by affected employees.The affidavits submitted by Respondent indicateaffected employee participation until a June 12, 1990 meeting between Respondent andComplainant.Complainant essentially asserts that theSeptember 7, 1990 order may remove opportunities for spontaneous settlements and otherwisewill result in a more a formal process than what is necessary and effective to reachingsettlements.\u00a0 Complainant also argues that the request for information by affectedemployees be treated as and controlled by the rules of discovery.\u00a0 Finally,Complainant argues its concern that the hazards cited are not being abated while theissues here are being debated.The affidavit of OSHA Area Director C. WilliamFreeman states that: employee representatives have consistently had input into thenegotiation of this matter; after the citations were issued, his office staff met withrepresentatives of Respondent and representatives of employees; OSHA solicited andreceived the views and priorities of the employee representatives before reachingsettlement with respondent as to certain items; a second meeting with OSHA staff andemployee representatives on the remaining sixteen items in dispute was held; on June 7 and8, 1990, employee representatives were informed of an impending June 12 settlementdiscussion to be held between OSHA staff and representatives of the respondent on thesesixteen items; employee representatives and representatives of the Respondent were alsoinformed that a subsequent meeting would be scheduled with employee representatives todiscuss the June 12 meeting and that no final decisions would be made on this matter untilthen; a June 13 meeting was held between OSHA staff, the OSHA Acting RegionalAdministrator for Region I, Stephen Perry, and two union representatives from respondent’smill during which all substantive facts regarding the matters were reviewed; and that OSHAcanvassed the union and Mr. Perry’s views regarding hazards in the workplace, methods ofabatement, and other items germane to subsequent negotiations with respondent.\u00a0 As aresult, Complainant argues that the only discussions at issue involve Perry who \”wasnot actually present, as a silent observer, during one conference and one follow-uptelephone call\”.\u00a0 Given OSHA’s interaction with affected employees, Complainantargues that employee representatives cannot credibly argue that they have been denied theopportunity for meaningful participation in the negotiation and resolution of this matter.The affected employees on the other hand arguethat the Commission in its GE decision ruled clearly that whether affectedemployees as a party were permitted to participate in a settlement negotiation was\”clearly within [the judge’s] discretion under the Commission’s rules.\”\u00a0 GE,slip op. at 8, n. 4, citing Commission Rule 51, 29 C.F.R. ? 2200.51. \u00a0Further, they contend that Respondent’s proposed mechanism for applying the GEstandard requires waiting until petitioner and respondent submit a settlement agreement tothe judge which affected employees claim is contrary to the \”expeditious, just andinexpensive determination in every case\” given that if it is determined thatmeaningful opportunity had been denied, the judge would be required to have the partiesrestart the settlement process.\u00a0 In support they cite Commission Rule 2 and Rule 1 ofthe Federal Rules of Civil Procedure.\u00a0 Finally, the affected employees argue that theissue of the meaningful opportunity to participate here is not premature, but is ripe forjudicial determination and that in so ruling the September 7, 1990 order correctly appliedthe Commission’s GE decision to the facts herein.The affidavits submitted by affected employeesindicate that: one individual designated as a representative for affected employees sincethe time of the walkaround [Trawick] had not participated in any discussions since theinformal conference; one individual designated as a representative for affected employeessince the time of the inspection [Cook] had not participated in any settlement discussionsand had not been afforded an opportunity of submitting meaningful input; one employeedesignated as a representative for affected employees beginning at an undetermined point[Patrick] and one individual designated as a representative of affected employees on June7, 1990 [Perry] had been \”totally denied presence at all settlementdiscussions\”.\u00a0 Accordingly, the affected employees requested \”allmemoranda, notes, recordings and information of every kind regarding all such settlementnegotiations now and on a continuing basis, including a list showing dates and locationsof all previous discussions by telephone or in person\”. Seeking full participation infuture settlement discussions, affected employees (UPIU) dropped their request for theabove information.DISCUSSION Respondent’s point that the September 7, 1990 order did not afford the parties anopportunity to include within their briefs the GE decision, given its recentissuance, is well taken.\u00a0 Accordingly, its motion for reconsideration is herebygranted in part.As a result of Respondent’s request forreconsideration, the parties have had the opportunity of briefing the issues here at handin light of the recent Commission GE decision and as a result the undersigned hasbenefited from such insights provided by the parties. Accordingly, there appears to belittle basis for requiring further briefing from the parties before ruling.\u00a0 TheSeptember 7, 1990 order is therefore reconsidered as follows.Respondent acknowledged that the Commission inits GE decision envisioned a \”mechanism by which employees can be given anopportunity for participation in the settlement process.\”\u00a0 GE slip op. at7.Contrary to Respondent’s concern that the judgewill become a \”referee\”, Commission Rule 101 provides for a mechanism forappointing a settlement judge to mediate such issues.\u00a0 The role of the settlementjudge, as contemplated in Commission 101, comports with the contemporary view of judges as\”case managers\” or \”managerial judges\”.\u00a0 See Resnick, ManagerialJudges, 96 Harvard L. Rev. 374, 378 (1982); Resnick, Managerial Judges and Court Delay:The Unproven Assumptions, 23-24 Judges Journal 8 (1984-85); Constantino, Judges asCase Managers, Trial, March 1981 at 56-60.\u00a0 This contemporary and arguably nowmajority view adopted by judges departs from the American legal establishment’s embrace ofthe classical view of the judicial role personified by the mystic goddess Justicia, who\”carries scales, reflecting the obligation to balance claims fairly; [who] possessesa sword, giving her great power to enforce decisions; and [who] wears a blindfold,protecting her from distractions\” and who remains \”aloof and stoic…represent[ing] [the] psychological distance between the judge and litigants.\” \u00a0Resnick, Managerial Judges, supra, at 376 and 383.[[3]]\u00a0 Today’s\”[m]anagerial judges are not silent auditors of retrospective events retold byfirst-person storytellers. . . [but] remove their blindfolds and become part of the sagathemselves.\”\u00a0 Id. at 408.\u00a0 This contemporary view is not howeverlimited to judges designated as settlement judges but contemplates that judges in everymatter before them carry the responsibility of settlement judge.The 1983 amendment to Rule 16 of the FederalRules of Civil Procedure codified the concept that the \”trial judge was indeed ruler,not only of pretrial conference, but of the entire pretrial process.\”\u00a0 McKay, Rule16 and Alternative Dispute Resolution, 63 Notre Dame L. Rev. 818, 823 (1988). \u00a0\”Rule 16 was amended in 1983 with the unmistakable purpose of encouraging ADR[alternative dispute resolution] as a significant part of the judicial process.\”\u00a0 Id. at 824.[[4]]\u00a0 See also, Peckham, The Federal Judge as a Case Manager:The New Role in Guiding a Case from Filing to Disposition, 69 California L. Rev. 770(1981).Commission Rule 51, as noted in GeneralElectric, expands the prehearing and scheduling procedures which a judge may directunder F.R.Civ.P. 16.\u00a0 While Commission Rule 51 and Rule 16 of the F.R.Civ.P. addresspretrial conferences, they implicate the settlement process as well.\u00a0 Rather thanstraitjacket the agencies settlement process with a formal rule for every agency,\”Congress intentionally left the agencies free to develop the precise manner by whichthey implement the opportunity for settlement.\u00a0 Thus, a single accepted settlementprocess or even guidelines within the APA or administrative law do not exist.\” \u00a0Harter, Neither Cop nor Collection Agent: Encouraging Administrative Settlementsby Ensuring Mediator Confidentiality, 42 ABA Admin L. Rev. 315, 316 (1989) noting theU.S. Department of Justice \”Attorney General’s Manual on the Administrative ProcedureAct\” 48 (1947), reprinted in the Administrative Conference of the U.S., \”FederalAdministrative Procedure Sourcebook\” 97 (1985).Further, support for the requirement thataffected employees be at least silent observers to settlement discussions is found in theAPA at 5 U.S.C. ? 554 (c).\u00a0 Section 554 (c) requires that agencies \”give allinterested parties opportunity for-(1) the submission and consideration of facts,arguments, offers of settlement, or proposals of adjustment when time, the nature of theproceeding, and the public interest permit…The emergent concept of a managerial judge onceinstituted here is one that may not only foster quicker or more efficiently reachedsettlements, but responsible ones as well.\u00a0 Contrary to the concerns raised byComplainant and Respondent that tripartite negotiations will impose \”unacceptablerestraints\” which will lead the parties to litigate rather than settle, given theCommission decision in GE, the participation of affected employees as silentobservers may expedite rather than delay settlements.\u00a0 Further such participationwill certainly allow the parties to reach a more sound agreement as well as give substanceand meaning to the affected employees right to participate in the settlement process.\u00a0 Finally, the disruption envisioned by Complainant and Respondent to the settlementprocess from inclusion of affected employees as silent observers rings hollow given theexceptionally few number of cases in which affected employees even seek party status.\u00a0 In those few cases where, as here, party status is obtained by affected employees,a more structured settlement process as established here may prove helpful.\u00a0 Allowingaffected employees to participate as silent observers from the start of the settlementprocess will preclude any restart of the settlement process.Finally, requiring that affected employees be atleast silent observers does not preclude Complainant and Respondent from allowing affectedemployees to participate more fully. Respondent and Complainant may exercise discretion toallow, without court intervention, expanded participation by affected employees as theydeem appropriate. The mechanism envisioned herein and in the September 7, 1990 orderhowever is the minimum participation required to insure that affected employeesparticipation is \”meaningful\”.Respondent’s concern that it and Complainantwill be faced with an \”endless ‘reinventing of the wheel’\” by a\”limitless number of ’employeerepresentatives’ in an OSHA proceeding and that these ‘representatives’ can step forwardat any time to claim that because they have not personally participated in pastsettlement discussions–although other employee representatives haveparticipated–employees have been precluded from meaningful participation in thesettlement process.while understood, overstates the problem and iseasily resolved.\u00a0 The opportunity to participate as a silent observer is granted notto the particular representative but to the union or group obtaining party status. \u00a0So long as the party has been afforded reasonable notice of any forthcoming settlementdiscussions, a representative for that group or union can not later step forward and claimthat because they were not personally present as a silent observer that there has been alack of meaningful participation for the union or group.\u00a0 Likewise, once given suchnotice, if a party fails to have a representative present, it forgoes any right to beinformed of the discussions that took place.Based on the affidavits submitted, there appearsto be no factual dispute that the affected employees were not present for settlementdiscussions on at least June 12, 1990.\u00a0 The affidavit of OSHA Area Director Freemanindicates that the affected employees were given notice of the June 12, 1990 settlementmeeting, and that affected employees were given ample opportunity to provide input.However, nowhere did Area Director Freeman indicate that affected employees were informedas to the substance of the settlement discussions.\u00a0 Area Director Freeman’s affidavitsubstantiates the basis for this court’s concern as articulated in the earlier order; i.e.that even an ample opportunity to provide input is meaningless without a foundation ofknowledge (including knowledge of the settlement discussions of the parties) to make theinput meaningful.\u00a0 Regarding the presence of affected employees at other settlementdiscussions, the facts are not clear at this time as to the extent of such discussions andthe extent to which affected employees were present.\u00a0 Further, in addition to thepresence of employees at the settlement discussions, there appears to be a factual disputeas to the extent to which affected employees have meaningfully participated vis a vistheir opportunity to provide input.\u00a0 Respondent and Complainant both seek to have theorder reconsidered here on the basis that affected employees have had meaningfulparticipation which the affected employees dispute.\u00a0 However, both Respondent andComplainant also argue that there should be no hearing to resolve this dispute. \u00a0Respondent’s position is based on its desire to seek interlocutory review of the legalissues.\u00a0 Complainant on the other hand bases its argument on the position thataffected employees have already been afforded meaningful participation, thereby appearingto either desire a ruling on the written record or otherwise appearing to beg the issuegenerally.\u00a0 Complainant and Respondent can not have it both ways.\u00a0 Accordingly,Respondent’s request for reconsideration is hereby granted in part as noted above anddenied in part as contained below.FINDINGSAffected employees who had obtained party status while given notice of proposed settlementdiscussions, were not allowed to have their representatives (who were duly designated)present during settlement discussions that took place one June 12, 1990. CONCLUSIONGiven that it is clear that employees were notpresent during at least the June 12, 1990 settlement, the matter is ripe for review atleast on both a factual and legal basis regarding this meeting.\u00a0 Given Respondent’sargument that no further factual determination be made including any hearing to resolvethe other factual disputes, affected employees motion for hearing is denied pendingresolution of Respondent’s interlocutory appeal.\u00a0 Affected employees request forcertain documents and information is granted in part and denied in part as describedbelow.Accordingly, the undersigned envisions thefollowing mechanism for effectuating the Commission’s GE decision and implementingthe undersigned’s order of September 7, 1990:1) Once affected employee(s) obtain partystatus, from that point forward only, they or their authorized representatives must begiven reasonable notice to observe any and all parts of the settlement process includingany discussions, negotiations or other communications regarding settlement betweenpetitioner and respondent in person or by telephone conference.2) Throughout the settlement process, affectedemployee(s) or their authorized representatives will have the opportunity to observe [orin the case of telephone conferences hear] all such communications but will notparticipate in such discussions other than as silent observers.3) If during the settlement process problemsarise regarding the denial of the presence of or regarding the participation of any party,a party may, by motion pursuant to Commission Rule 101, seek the appointment of asettlement judge to mediate such problems.\u00a0 If the appointment of a settlement judgeis objected to by Complainant or Respondent then the judge assigned must resolve theproblems.4) Prior to the submission of any finalsettlement to the judge, affected employee(s) or their authorized representatives will beafforded the opportunity of providing input to Complainant regarding any and all mattersat issue in addition to the reasonableness of the period of abatement including but notlimited to the inspection, citation(s), and\/or other issues arising during the settlementprocess.5) Subsequent to the submission of a settlementagreement to the judge, affected employee(s) or their authorized representative(s) mayfile with such judge their objections as to the reasonableness of the time periodprescribed for abatement.\u00a0 The issue of the failure of a settlement judge to providefor or the general issue of meaningful participation by affected employees may be groundsfor an interlocutory appeal.6) On interlocutory appeal or once a settlementis approved, the Commission only may entertain any complaint by affected employees thatthey were denied meaningful participation.Given that much of the settlement process here\”has passed under the bridge\” and in order to comply with the above settlementmechanism effectuating the Commission’s GE decision as reasonably as practicableand to encourage efficient disposition of this matter, Complainant including its clientthe Occupational Safety and Health Administration and Respondent are hereby ordered todisclose to the affected employees who have obtained party status all memoranda, notes,recordings and information of every kind describing the substance of the settlementdiscussions of the June 12, 1990 meeting.\u00a0 Given that this order is issued afterComplainant and Respondent initially disclosed or produced such documents or informationwithout the knowledge of the consequences of this order, Complainant or Respondent mayseek to limit, beyond what may be excised as noted below, specific documents orinformation from being disclosed to affected employees by filing a motion pursuant toCommission Rule 101 seeking the appointment of a settlement judge to mediate any suchdisclosure issue.\u00a0 Complainant and Respondent may excise from such memoranda, notes,recordings and any other information being provided, as ordered above, to affectedemployees any language contained therein which is not descriptive of the discussions butwhich analyzes the settlement process or otherwise might be described as attorney workproduct.\u00a0 Complainant and Respondent will also submit to affected employees anaffidavit of lead counsel for Complainant and Respondent containing a chronology listingdates and locations of all other settlement discussions by telephone or in person whichhave taken place since the issuance of the citations.[[5]]\u00a0 Finally, settlementdiscussions may begin 15 days after the affected employees have received from Complainantand Respondent the information required above.\u00a0 Representatives of affected employeesshall be present during the remaining communications comprising the settlement process andnumbers 1) et seq of the above settlement process mechanism shall remain in effectfor the balance of this proceeding.\u00a0 If affected employees, once having been providedreasonable notice of an intent of Complainant and Respondent to enter into settlementcommunications, chose not to be present nor to be included in any telephone conference,neither Complainant nor Respondent are under any obligation to apprise such affectedemployees of the substance of such communication.SO ORDERED.DELBERT R. TERRILL, JR.Judge, OSHRCDated: October 23, 1990 Boston, Massachusetts SECRETARY OF LABOR, Complainant, v. BOISE CASCADE CORPORATION Respondent,INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2144Affected Employees, UNITED PAPERWORKERS’ INTERNATIONAL UNION, LOCAL 900Affected Employees, Docket Nos. 89-3087 & 89-3088\u00a0ORDER GRANTING EMPLOYEE REPRESENTATIVE’SREQUEST TO BE PRESENT DURING ALL SETTLEMENT DISCUSSIONS STATEMENT OF CASEOn September 13, 1989, Complainant issuedCitations and Notifications of Proposed Penalty to Respondent alleging violations of theOccupational Safety and Health Act, 29 U.S.C. ? 651 et seq (\”Act\”). \u00a0Respondent timely filed with a representative of the Secretary of Labor a notification ofintent to contest the citations and proposed penalties. Complainant and Respondentsubsequently engaged in settlement negotiations to resolve the issues raised in thecitations. A motion for extension of time was granted on May 21, 1990 in order for theparties to complete the settlement process and to file an anticipated Settlement Agreementon or before July 12, 1990.On June 7, 1990, Stephen Perry filed a notice ofappearance as representative of United Paperworkers International Union (UPIU) Local 900.\u00a0 On June 7, 1990, an Order was issued designating UPIU, Local 900 as a party to thismatter and the authorized representative of affected employees.On July 6, 1990, in response to a July 3, 1990motion for extension of time to file the anticipated Settlement Agreement filed byComplainant and Respondent, Perry filed a response asserting that the employeerepresentative has been \”completely excluded from any meaningful participation in anysettlement discussions regarding the citations.\”\u00a0 A July 12 Order wassubsequently issued ordering all parties to file briefs relating to the issue of rights ofa union with party status in a Review Commission proceeding to participate in settlementnegotiations.Stephen Perry and UPIU Local 900 filed a briefon July 31, 1990, in response to the Judge’s Order of July 12, in support of its positionthat it be accorded full participation in settlement conferences which may be held betweenrepresentatives of the Complainant and Respondent to resolve the citations in the instantmatter.\u00a0 Complainant and Respondent filed briefs in opposition to this position,stating that authorized employee representatives have no right under the Act toparticipate directly in settlement negotiations between Complainant and the employer.APPLICABLE LAW, RULES AND REGULATIONSSection 10 (c) of the Act provides employees and their authorized representatives twoalternatives to participate in proceedings before the Review Commission. First, Section10(c) provides that after a citation has been issued, employees or their representativesmay file a notice of contest \”alleging that the period of time fixed in the citationfor the abatement of the violation is unreasonable,\” and the Commission shall then\”afford an opportunity for a hearing.\” 29 U.S.C. ? 659(c). Secondly, Section10(c) provides that \”the rules of procedure prescribed by the Commission shallprovide affected employees or representatives of affected employees an opportunity toparticipate as parties to hearings under this subsection.\” [[1]] It has been notedextensively that these two sentences in section 10(c) have caused much controversyconcerning the scope of employee and union rights to participate in Commissionproceedings. [[2]]Before 1977, the Commission held that it had theauthority to entertain union and employee objections to proposed settlements on mattersother than the reasonableness of the period of time for abatement.\u00a0 See AmericanAirlines, 2 BNA OSHC 1391 (Review Commission 1974).\u00a0 In 1977, the Commission heldthat employees’ and union’s objections to proposed settlement agreements were limited tochallenging the length of the abatement period.\u00a0 United States Steel Corp., 4BNA OSHC 2001 (Review Commission 1977).\u00a0 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., 10BNA OSHC 1905 (Review Commission, 1982) and IMC Chem. Group, 6 BNA OSHC 2075(Review Commission, 1980) decisions the Commission overruled its holdings in U.S. Steeland Southern Bell.In 1984 the Commission again reversed itself andoverruled the IMC and Mobil Oil decisions in Pan American World Airways,Inc., 11 BNA OSHC 2003 (Review Commission 1984).\u00a0 In Pan Am, the Commissionnoted its alignment with U.S. Courts of Appeal from eight circuits[[3]] which had ruledthat \”a union lacks the right to object to the adequacy of the abatement methodsspecified in a settlement agreement between the Secretary and an employer, and that aunion may object only to the reasonableness of the abatement periodspecified by the agreement.\” (Emphasis added).\u00a0 The Commission further held that\”[all] decisions to the contrary are overruled.\”\u00a0 Accord, GeneralElectric Co., 12 BNA OSHC OSHC 1597 (Review Commission, 1985); Willamette Iron &Steel Co., 11 BNA OSHC 1955 (1984) (employees may not object to a change incharacterization of a violation contained in a settlement agreement).\u00a0 However, inits 1985 General Electric decision, the Commission also noted that, pursuant toRule 10 (c), judge’s may direct that unions be permitted to participate in any settlementnegotiations.\u00a0 General Electric, supra, at n.4.Rule 100 of the Commission Rules of Procedure,effectuating the above Commission decisions, explicitly provides that employee objectionsto settlements are limited to the reasonableness of the abatement time.\u00a0 Rule 100 (b)states:b) Requirements.\u00a0 The Commissiondoes not require that the parties include any particular language in a settlementagreement, but does require that the agreement specify the terms of settlement for eachcontested item, specify any contested item or issue that remains to be decided … andstate whether any affected employees who have elected party status have raised anobjection to the reasonableness of any abatement time….29 CFR ? 2200.100 (b).\u00a0 Rule 100 (c) alsodeclares, in pertinent part:(c) Filing; Service and notice. …When asettlement agreement is filed with the Judge or the Executive Secretary, proof of serviceshall be filed with the settlement agreement, showing service upon all parties andauthorized employee representatives…and the posting of notice to non-party affectedemployees…. If the time has not expired under these rules electing party status, or ifparty status has been elected, an order terminating the litigation before the Commissionbecause of the settlement shall not be issued until at least ten days after service toconsider any affected employee’s or authorized employee representative’s objection to thereasonableness of any abatement time.\u00a0 The affected employee or authorized employeerepresentative shall file any such objection within this time.\u00a0 If such objection isfiled or stated in the settlement agreement, the Commission or the Judge shall provide anopportunity for the affected employees or authorized employee representative to be heardand present evidence on the objection, which shall be limited to the reasonableness ofthe abatement time.(Emphasis added) 29 CFR ? 2200.100(c).While affected employees and their authorizedrepresentatives have the right to object to the reasonableness of an abatement period, theSecretary retains enforcement authority under the Act.\u00a0 In Cuyahoga Valley RailwayCo. v. United Transp. Union, 474 U.S. 3; 106 S.Ct. 286; 88 L.Ed.2d 2 (1985), theSupreme Court ruled that the rights created by the Occupational Safety and Health Act areto be protected by the Secretary, who also has sole responsibility for its enforcement.\u00a0 The Court stated:It is the Secretary, not the Commission, whosets the substantive standards for the work place, and only the Secretary has theauthority to determine if a citation should be issued to an employer for unsafe workingconditions.\u00a0 29 U.S.C. ? 158.\u00a0 A necessary adjunct of that power is theauthority to withdraw a citation and enter into settlement discussions with the employer.Cuyahoga, supra, at p. 288, citing Donovanv. 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]]\u00a0 In reversing the Sixth Circuit’sconclusion, the Court stated that the Sixth Circuit’s decision \”would discourage theSecretary from seeking voluntary settlements with employers in violation of the Act, thusunduly hampering the enforcement of the Act.\” Cuyahoga, at 288.Recently, the Commission raised the generalissue of union participation in settlement discussions in its very recent decision in GeneralElectric Co. (Docket No. 88-2265, August 29, 1990).\u00a0 In this 1990 GeneralElectric decision, the Commission noted that precedent provided for \”meaningfulparticipation\” of employee and employee representatives in the settlement negotiatingprocess. However, the Commission in this recent General Electric decision furtherrecognized, \”[t]he Commission has never articulated precisely what it meant by’meaningful participation,’ nor has it set forth specifically how employees are to beincluded in settlement negotiations.\”The Commission in this recent GeneralElectric decision noted the reason for the ambiguity of these principles.\u00a0 Whileemployees are limited as a result of the Pan American decision to objecting only tothe reasonableness of the abatement period, Pan American \”did not disturb theCommission’s holdings that employees may participate in the settlement process.\”\u00a0 General Electric, at n.3.[[5]]As a result the General Electric leftintact the holding of Pan American and left intact Rule 100 which \”obligatesthe Secretary and the employer to ascertain whether the employees have any objection tothe abatement period, the sole issue on which they have the right to object before theCommission.\”\u00a0 The Review Commission continued by stating:These comments, however, are not intended tosuggest that there is no mechanism by which employees can be given an opportunity forparticipation in the settlement process.\u00a0 Employees may be given such an opportunityby allowing them to present their views on a settlement agreement to the other parties,and particularly to the Secretary, before the agreement is fully executed and filed withthe judge.\u00a0 This procedure would be consistent with other provisions of the Act thatgrant employees input into the decisions the Secretary makes in the interest ofsafeguarding employee health and safety…Thus, consistent with the overall scheme of thestatute and the obvious importance of ensuring that employees have a chance to be heard,we are of the opinion that when enforcement proceedings have been initiated before theCommission and the Secretary proposes to settle the case, any input offered by theaffected employees should be received at some point before a settlement agreement isexecuted between the Secretary and the employer. General Electric, supra.The Commission concluded by noting that ifComplainant and Respondent reach a settlement notwithstanding the contrary views ofemployees or their representatives, the employees or their representatives may file anobjection with the judge limited to the reasonableness of the period of abatement. \u00a0The Commission will examine a settlement agreement \”to determine that the employeeshave had an opportunity to provide input during the formulation of the agreement.\u00a0 Inthis way, the legitimate interest of employees in being heard on the terms of a proposedsettlement can be accommodated in a manner consistent with the limited rights of employeesor their representatives to object to a settlement agreement once that agreement has beenfiled with the Commission or Commission judge.\”CONTENTIONS OF THE PARTIESIn the instant matter, both Complainant andRespondent recognize that the Review Commission has accorded employee representatives theright to \”meaningful participation in settlements.\” Reynolds Metals Company,7 BNA OSHC 1042 (1979).\u00a0 They contend, however, that such \”meaningfulparticipation\” is fully protected by the notice provisions of Rule 100. [[6]]The Complainant and Respondent further arguethat the Supreme Court decision in Cuyahoga is dispositive of the issue.\u00a0 Inthat case, the Court held that the Secretary has unreviewable discretion to withdraw acitation charging an employer with violating the Occupational Health and Safety Act,\”and noted its agreement with decisions of eight other Courts of Appeals which wereconsistent with this holding.\u00a0 Cuyahoga Valley Ry. Co., supra, at p. 287.[[7]]UPIU in the instant case does not dispute thatthe Complainant has unreviewable prosecutorial discretion to withdraw a citation and enterinto settlement discussions with an employer pursuant to Cuyahoga.\u00a0 Nor doesUPIU take issue with the Commission’s lack jurisdiction to review a citation, penalty orsettlement agreement between the Secretary of Labor and an employer, except as to thereasonableness of the abatement period set forth in that agreement.\u00a0 DelcoElectronics Division, 13 BNA OSHC 1639 (1988); Pan American, supra.The union argues, however, that the issue here,instead, is the Review Commission Judge’s power to require Complainant and Respondent toopen settlement discussions to all parties including employee parties and theirrepresentatives.\u00a0 UPIU cites Commission Rule 51 as the source of authority for theALJ to invoke such an order.\u00a0 Rule 51 provides in relevant part:? 2200.51 Prehearing conferences and orders…. In addition to the prehearing and scheduling procedures set forth in Fed.R.Civ.P. 16,the Judge may upon his own initiative or on the motion of a party direct the parties toconfer among themselves to consider settlement, stipulation of facts or any other matterthat may expedite the hearing….29 CFR ? 2200.51.\u00a0 This discretionary rule comports with Rule 100(a), which statesthat \”[s]ettlement is permitted and encouraged by the Commission at any stage of theproceedings.\”\u00a0 29 CFR ? 2200. 100 (a).[[8]]\u00a0 Further, the preamble to Rule51 states that it applies to all parties.\u00a0 51 Fed. Reg. 32009 (1986).The union advances several strong policyarguments in favor of allowing its participation in settlement discussions.\u00a0 Thesearguments have been echoed by several commentators on the subject.[[9]]\u00a0 Mostpersuasive is its argument that allowing its participation in settlement discussions isnot the same as invoking judicial review of employee objections to terms in the settlementagreement other than those having to do with the reasonableness of abatement time. \u00a0\”Employees want meaningful participation before the terms become final and’unreviewable’,\” the union argues.DISCUSSION Complainant’s and Respondent’s reliance on the Cuyahogadecision as being dispositive here is misplaced.\u00a0 The facts in Cuyahoga areclearly distinguishable.\u00a0 In Cuyahoga, the Complainant chose to withdraw thecitation and accordingly there was no abatement period on the settlement table.\u00a0 Itis only when the abatement period is on the settlement table that employees have the rightto participate in settlement discussions.Objections to the abatement period under Rule100 (c) must be based on credible evidence.\u00a0 Much of such evidence will be within thepossession of either Respondent or Complainant and would presumably be discussed duringsettlement.\u00a0 The right of affected employees and their representatives to object tothe reasonableness of the abatement periods can, in part, only be given substance if theemployee or employee representative is given a meaningful basis upon which to formulatesuch an objection.\u00a0 Since the abatement period is necessarily part of a negotiatedsettlement, then the employees or their representatives ought to be able to at least bepresent to observe the give-and-take of settlement discussions leading to the agreed uponabatement period.\u00a0 A right without the opportunity to obtain information upon whichto exercise that right is a meaningless right.Further, UPIU’s position, is consistent with the Commission’s recent General Electricdecision.However UPIU’s contention that Commission Rule51 is appropriate here is also misplaced as to relying on this rule to the initiatesettlement discussions since settlement discussions have already been initiated and nearlyconsummated.\u00a0 However, given General Electric, it is also clear that inorder to assure that affected employees are given proper participation during settlementdiscussions, Rule 51 may be used to direct same.The Secretary notes that from the affidavit ofOSHA Area Director C. William Freeman, it is clear that employee representatives haveconsistently had input into the negotiation of this matter.\u00a0 After the citations wereissued, his office staff met with representatives of respondent and representatives ofemployees, at which time Stephen Perry was not an employee representative. OSHA solicitedand received the views and priorities of the employee representatives before reachingsettlement with respondent as to certain items.A second meeting with OSHA staff and employeerepresentatives on the remaining sixteen items in dispute was held; on June 7 and 8, 1990,employee representatives were informed of an impending June 12 settlement discussion to beheld between OSHA staff and representatives of the respondent on these sixteen items.\u00a0 Employee representatives and representatives of the respondent were also informedthat a subsequent meeting would be scheduled with employee representatives to discuss theJune 12 meeting and that no final decisions would be made on this matter until then.\u00a0 A June 13 meeting was held between OSHA staff, the OSHA Acting RegionalAdministrator for Region I, Stephen Perry, and two union representatives from respondent’smill.\u00a0 At this meeting, all substantive facts regarding the matters were reviewed;OSHA canvassed the union and Mr. Perry’s views regarding hazards in the workplace, methodsof abatement, and other items germane to subsequent negotiations with respondent. \u00a0The Secretary argues that employee representatives cannot credibly argue that they havebeen denied the opportunity for meaningful participation in the negotiation and resolutionof this matter.CONCLUSION There is no explicit provision authorizing the Judge to direct that settlementnegotiations be held between parties and employee representatives.[[10]]\u00a0 Decisionallaw of the Circuit Courts of Appeals and the Review Commission as well as the ReviewCommission Rules of Procedure consistently pronounce that an employee or employeerepresentative’s objection to a settlement agreement is limited to that which concerns thereasonableness of the time for abatement.\u00a0 Given the recent General Electricdecision, it is clear that affected employees and their authorized representatives shallparticipate in settlement discussions when they so request.\u00a0 As articulated above,that means at a minimum being present for all settlement discussions and at least anopportunity prior to settlement to present its views to the Secretary.\u00a0 Such is\”meaningful participation\”.It is unclear, given the facts presented,whether the union was given the opportunity for meaningful participation in thenegotiating process.\u00a0 It is therefore ORDERED:1. That within 20 days of the date of thisorder, Local 900 file a notice of election of party status pursuant to Rule 2200.20,noting its designation of Stephen C. Perry as its representative pursuant to Rule2200.23(a)(3).2. That within 20 days of the date of thisorder, the authorized employee representative file affidavits or other evidence in supportof its assertion that it has been denied meaningful participation in settlementnegotiations.3. If there is a factual dispute as to theactual extent of participation of the affected employee’s representatives and if there isa desire by any party for a factual hearing on the merits regarding this issue, any partymay move for a hearing to resolve such factual disputes.4. If there is no factual dispute regardingparticipation of affected employee’s representatives and if in fact such representativeshave been denied participation consistent with this order, the parties have 15 days afterthe filings complying with numbers 1 and 2 above, to file proposed means to rectify suchlack 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’ INTERNATIONAL UNION, LOCAL 900, Authorized Employee Representative.OSHRC Docket Nos. 89-3087 and 89-3088 Region IORDER GRANTING CONSOLIDATION AND APPROVING SETTLEMENTRespondent in OSHRC Docket Nos. 89-3087 and89-3088, by letter dated October 2, 1989, timely contested the Citations issued to it byComplainant on September 13, 1989.\u00a0 Respondent also contested the penalties proposedby Complainant for the Citations.The parties have moved that these cases beconsolidated for purposes of settlement.\u00a0 In addition, an executed SettlementAgreement addressing this case has been received from the parties, and this Agreementaddresses all matters at issue between the parties regarding these cases.\u00a0 The Motionand the Agreement having been read and considered, it isORDERED: (1) That the parties’ Motion is grantedand that these cases are hereby consolidated for settlement purposes; (2) That the terms of the Settlement Agreement are approved and incorporated as part ofthis order;(3) That the Citation items are affirmed,modified, or vacated in accordance 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 theexpiration of 30 days from the date of docketing by the Executive Secretary, unless withinthat time a member of the Commission directs that it be reviewed.Dated this 23rd day of April, 1991.Richard DeBenedetto JudgeSECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Complainant, v. BOISE CASCADE CORPORATION, RUMFORD MILL, Respondent.UNITED PAPERWORKERS’ INTERNATIONAL UNION, LOCAL 900, Authorized Employee Representative.OSHRC Docket Nos. 89-3087 and 89-3088Region IMOTION FOR CONSOLIDATION AND SETTLEMENT AGREEMENTThe parties, BOISE CASCADE CORPORATION, RUMFORDMILL (\”Boise\” or \”the Company\”) and its successors; the SECRETARY OFLABOR, the UNITED STATES DEPARTMENT OF LABOR (\”the Secretary\” or\”OSHA\”); and the UNITED PAPERWORKERS’ INTERNATI0NAL UNION, LOCAL 900, by theirundersigned representatives, have reached full and complete settlement of OSHRC DocketNos. 89-3087 and 89-3088 under Rule 2200.100, the Occupational Safety and Health ReviewCommission’s (\”the Commission\”) procedural rule on settlement.\u00a0 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 (\”theAct\”).2. The parties move, pursuant to Commission Rule2200.9, that these matters, OSHRC Docket Nos. 89-3087 and 89-3088, be consolidated forpurposes of settlement.\u00a0 The two matters have common parties and involve the sameoverall worksite.3. The Secretary amends the Citations at issuein OSHRC Docket Nos. 89-3087 and 89-3088 in accordance with the attached Appendices A, B,and C.\u00a0 In addition, all characterizations of alleged violations as\”willful\” in the Citations are amended by deleting all such characterizations;and, except for the final abatement date for each item, all references in the Citations toan \”Abatement Schedule\” are amended by deleting all such references.4. The total proposed penalty for OSHRC DocketNos. 89-3087 and 89-3088 is amended to $750,000.\u00a0 One half of the penalty amount, asamended, shall be paid within 30 days of the Commission’s Final Order in this matter; theremaining half of the amended penalty amount shall be paid by July 31, 1991.\u00a0 Bothpayments shall be made to \”DOL-OSHA\” and filed with the Augusta, Maine, AreaOffice of OSHA.5. In addition to the proposed penalty, asamended, Boise will give a grant to the Center for Occupational Safety and Health in Mainein the amount of $125,000.\u00a0 The grant shall be by July 31, 1991.6. Boise specifically denies any and all allegations that it violated the Act.\u00a0 Nothing in this Agreement, including the Agreement itself, its execution, as wellas any final order, is an admission or evidence, nor is it to be construed as an admissionor treated as evidence, of any fact or of any violation of the Act by Boise, other than ina proceeding brought by the Secretary under the Act. Boise withdraws its notice of contestto the Citations, as amended; this withdrawal, however, is not intended to be, nor is itto be construed as, inconsistent in any way with other language in this Agreement.\u00a0 For purposes of proceedings brought by the Secretary under the Act, the partiesagree to treat the Citations in OSHRC Docket Nos. 89-3087 and 89-3088, as amended, asuncontested citations.\u00a0 This Agreement is being entered into solely to avoid furtherlitigation and expense to the parties.7. There are no citation items in OSHRC DocketNos. 89-3087 and 89-3088 that remain to be decided by the Commission.8. The parties agree that this Agreement shallbecome a Final Order of the Commission.\u00a0 Included with this Agreement is a draftOrder Granting Consolidation and Approving Settlement.\u00a0 The form and content of thisdraft Order have been negotiated.\u00a0 The parties hereby consent to the entry of thisdraft Order so that the litigation of this matter may be brought to an end.9. The parties agree to bear their ownattorneys’ fees, and costs, and other expenses that have been incurred in connection withany stage of these proceedings up to and including the filing of this Agreement and entryof the Final Order in these matters.10. Boise certifies that the original Notice ofContest as well as all pleadings in OSHRC Docket Nos. 89-3087 and 89-3088, including acopy of this Agreement, have been served on affected employees at the Rumford Mill inaccordance with Commission Rule 2200.7.Respectfully submitted, this ___ day of ___1991.Robert G. GombarJONES, DAY, REAVIS & POGUE Metropolitan SquareCounsel for Respondent, BOISE CASCADE CORPORATIONRobert P. Davis Solicitor of LaborAlbert H. RossRegional SolicitorPaul J. Katz Attorney U.S. DEPARTMENT OF LABOR Counsel for Complainant, SECRETARY OF LABORStephen C. Perry Representative UNITED PAPERWORKERS’INTERNATIONAL UNION, LOCAL 900FOOTNOTES: [[1\/]] The Secretary issued several citationsalleging willful, repeated, serious, and nonserious violations.\u00a0 The citationstotaled literally hundreds of pages in length, with proposed penalties well in excess of$1 million.\u00a0 Boise filed its notice of contest on October 2, 1989.\u00a0 The partiesoriginally informed the judge that they expected to reach a settlement by January 30,1990.\u00a0 The judge thereafter granted several requests for an extension of time to filea settlement agreement.[[2\/]] Boise’s employees are also represented byLocal 2144 of the International Brotherhood of Electrical Workers (\”IBEW\”).\u00a0 The orders entered by the Administrative Law Judge and some of the pleadings filedin these cases were served on the IBEW, as well as the UPIU, and during the course ofthese proceedings the IBEW was included as a party on the case caption.\u00a0 However, theIBEW has not filed an election of party status or a notice of appearance.\u00a0 Althoughwe invited the IBEW to participate in the oral argument of these cases, it chose not to doso, nor has it otherwise expressed any interest in these proceedings.\u00a0 Accordingly,we conclude that the IBEW should not be treated as an employee party, and we amend thecase caption accordingly.[[3\/]] This conclusion is not intended todiminish the authority granted a judge by Commission Rule 51, 29 C.F.R. ? 2200.51, to\”direct the parties to confer among themselves to consider settlement.\”\u00a0 The judge retains authority to direct the parties to confer under Rule 51, but Rule51 does not permit the judge to order that employees be included in settlement conferencesbetween the Secretary and the employer.We note that in GE, the judge issued anorder directing that employees be included in settlement negotiations, and we brieflycommented in our decision that under Rule 51, such an order was within the judge’sdiscretion.\u00a0 14 BNA OSHC at 1766 n.4, 1990 CCH OSHD at p. 38,850 n.4.\u00a0 However,we did not in GE decide whether employees are entitled as a matter of right toparticipate in settlement negotiations; rather, we simply held that they should be giventhe opportunity to provide input.\u00a0 The purpose of this footnote was merely to supportour view that employees should be allowed to give input.\u00a0 To the extent that thisfootnote may be construed as endorsing any particular method or degree of employee input,it is dicta in the overall context of GE.[[4\/]] In view of our decision, we do not needto directly address whether Judge Terrill acted improperly in ordering that the UPIU couldnot speak during the settlement negotiations, i.e., that it was limited to the roleof a \”silent observer.\”[[5\/]] Commission Rule 20(a), 29 C.F.R. ?2200.20(a), provides that employees and their representatives may elect party status tothe limited extent that their appearance relates to \”any matter in which the Actconfers a right to participate.\”\u00a0 Commission Rule 100(b), 29 C.F.R. ?2200.100(b), provides that a settlement agreement must \”state whether any affectedemployees who have elected party status have raised an objection to the reasonableness ofthe abatement time.\”[[6\/]] Employees do not need to be given noticeof every settlement discussion in order to effectuate their opportunity for input.\u00a0 In view of the fact that the amicable resolution of contested citations will befacilitated by cooperation among all parties, we are hopeful that employees or theirrepresentatives concerned about their opportunity for input will make their concerns knownin a reasonable and prudent manner in order to avoid undue delay of the settlementprocess.\u00a0 We emphasize that the determination of when to consider a claim regardingemployee input is within the sound discretion of the judge, who is responsible forensuring that the proceedings are conducted in both an expeditious and just manner.\u00a0 Commission Rule 2(c), 29 C.F.R. ? 2200.2(c).\u00a0 However, the judge must takeinto account that input can be received at any time prior to the execution of thesettlement agreement.[[7\/]] One of the issues which we requested theparties to address at oral argument was whether the judge erred in ordering the Secretaryand Boise to disclose all materials relating to the June 12, 1990 settlement discussionand in ordering their counsel to submit affidavits providing a chronology of allsettlement discussions occurring since the citations were issued.\u00a0 However, at oralargument counsel for the UPIU advised us that the union had withdrawn its request for thisinformation and that it did not consider a ruling on the propriety of such a request to benecessary under the circumstances.[[1]] The affected employees did not sendcomplete copies of the filings and affidavits to Complainant in that the affectedemployees confirmed in a letter to Complainant dated October 10, 1990, that Complainanthad \”misspoke\” when Complainant had indicated during a telephone conference [forwhich call affected employees were not present although efforts were made to have thempresent] that it had not received all of the affected employees pleadings.\u00a0 Complainant did not dispute the confirmation.[[2]] Complainant failed to timely file inaccordance with the undersigned’s October 5, 1990 order its response dated October 17,1990 which, however, is nevertheless considered herein.[[3]] The now predominant and current role ofjudges as managers is not without criticism.\u00a0 Even proponents such as Resnick agreethat this type of \”judicial activism\” is not unlimited.[[4]] McKay notes that the term\”alternative dispute resolution\” has been misunderstood as a system which mustnecessarily exist outside of the judicial system.\u00a0 He notes, however, that ‘[w]hilearbitration and mediation, for example, may be initiated and completed outside thejudicial framework, some of the most promising devices, such as court-annexed arbitration,summary jury trial, and the various processes of judge-assisted settlement, are all ADRprocesses within the judicial system.\”\u00a0 Id. at 822.\u00a0 The ADR conceptis embodied in Commission Rule 101.[[5]] Once this matter is resolved oninterlocutory appeal, and if this decision is essentially sustained by the Commission,affected employees will be further and likewise informed of any other meetings for whichthey were not present.\u00a0 Complainant and Respondent will not obligated to disclose toaffected employees settlement discussions engaged in prior to affected employees obtainingparty status.\u00a0 If different unions or groups of affected employees obtained partystatus at different times, the date for obtaining party status shall govern which union orgroup of affected employees get what settlement discussion information.\u00a0 As a result,it is understood that different unions or groups of affected employees will be entitled todifferent dated materials.[[1]] Rule 20 of the Commission Rules ofProcedure provides for the election of party status by affected employees and authorizedemployee representatives.\u00a0 29 CFR ? 2200.20.[[2]] Mark Rothstein notes that ? 10(c) is\”well known to be one of the most poorly drafted and error-filled sections of theAct. \”ROTHSTEIN, Occupational Safety and Health Law (2nd Ed.) ? 369, noting H.K.Porter Co., 1 BNA OSHC 1600 (1974)\u00a0 See also, Note, Employee Participation inOccupational Safety and Health Review Commission Proceedings, 85 Colum. L. Rev. 1317,1320 (1985) (\”The unclear language of the Occupational Safety and Health Act has ledto vacillation by the Occupational Safety and Health Review Commission and a division ofopinion among the circuits that have considered the extent to which employees mayparticipate in Occupational Safety and Health Review Commission proceedings\”).[[3]] The Commission noted Donovan v. OSHRC(Mobil Oil Corp.), 713 F.2d 918 (2d Cir. 1983); Donovan v. International Union,Allied Industrial Workers (Whirlpool Corp.), 722 F.2d 1415 (8th Cir. 1983); Donovanv. United Steelworkers (Monsanto Co.), 722 F.2d 1158 (4th Cir. 1983); Donovanv. Oil, Chemical & Atomic Workers International Union (American Petrofina Co.),718 F.2d 1341 (5th Cir. 1983); Oil, Chemical & Atomic Workers International Unionv. OSHRC (American Cynamid Co.), 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 Motor Co.), 557 F.2d 607(7th Cir. 1977).[[4]] The decision in Mobil Oilelaborated the rights conferred by the Act upon the Secretary and employees pursuant tosettlement of citations:[T]he legislative scheme of the Act does notevidence a Congressional intent to subordinate the Secretary’s prosecutorial discretion inreaching settlement agreements to the rights of employees.\u00a0 Indeed, allowingemployees to challenge the efficacy of an abatement plan in a settlement would constitutea continued prosecution of the citation by employees and, hence, is proscribed under theAct.[[5]] The Commission also cautioned, however,that \”[n]evertheless, the scope of such participation must be viewed in light of thelimited opportunity employees have to object to fully executed settlements before theCommission, as well as the limited role of the Commission in reviewing settlementagreements that have been filed with the Commission or a Commission judge forapproval.\” General Electric, at n.3[[6]] Respondent notes that there has beenlanguage in Review Commission decisions to suggest that such meaningful participationincludes the right to take part in settlement negotiations.\u00a0 See, General MotorsCorp., Terex Division, 10 BNA OSHC 2020 (Review Commission, 1982).\u00a0 Respondentnotes that the decision in General Motors was directed for review in order todetermine whether the union had been given an opportunity \”for meaningfulparticipation in the settlement process in accordance with Rule 100 (c).\”\u00a0 Inaddition, that the basis for the Review Commission’s remand in General Motors wasits decision in Mobil Oil Corp. which was later overturned by the Second Circuit.\u00a0 See also, Asarco, Inc., 8 BNA OSHC 2200 (Review Commission, 1980); ITTThompson Industries, Inc., 6 BNA OSHC 1944 (1978).[[7]] The Supreme Court noted decisions of theSeventh, Eleventh, Eighth, Fourth, Fifth, Second, Third, and D. C. Circuits in reviewingthe Sixth Circuit’s decision in Donovan V. United Transportation Union, 748 F.2d340 (1984).\u00a0 The Supreme Court reversed the Sixth Circuit’s holding that theprosecutorial discretion of the Secretary ends with the decision to issue a citation andthat once an employer has initiated a contest, the Review Commission may hear allobjections raised by employees or their representatives who have elected party status andmay 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 the abatement date whetherthe initial notice of contest is filed by the employer or by employees.\u00a0 In the FifthCircuit, however, employees who elect party status after the employer initiates a noticeof contest may \”litigate fully\” the merits of the citation and the terms of thesettlement agreement.\u00a0 Donovan v. Oil, Chem, and Atom. Workers Intern,718 F.2d 1341 (5th Cir. 1983).\u00a0 The Court analogized the position of an employee inthis case to an intervenor of right under Rule 24 (a) of the Federal Rules of CivilProcedure, who \”is treated as if he were an original party and has equal standingwith the original parties.\”However, the Court ruled that once an employerwithdraws its notice of contest pursuant to settlement, \”[t]he employee is in aposition analogous to an intervenor in a civil lawsuit in which the original parties havesettled or sought dismissal.\”\u00a0 Thus, if the employer withdraws its notice ofcontest, the Court stated that it was constrained by the decisions of the aforementionedCircuits to hold that the employees are limited to challenging the abatement period andthe Commission loses jurisdiction to entertain the employees’ petition for review of thesettlement agreement’s terms.[[8]] This is also consistent with Fed.R.Civ.P.16(a) which allows the court in its discretion to direct attorneys and unrepresentedparties to appear before it for a pretrial conference for such purposes, among others, as\”(5) facilitating the settlement of the case.\” Rule 16(c) states that a subjectto be discussed at a pretrial conference may include, \”(7) the possibility ofsettlement or the use of extrajudicial procedures to resolve the dispute.\” [[9]] Rothstein notes that the majority ofemployee challenges in adjudicatory proceedings involve the method rather than the timefor abatement.\u00a0 \”Indeed,\” he notes, \”the time for abatement isirrelevant if the method is inadequate.\u00a0 Both the first and last sentences of ?10(c) should be read together to mean that employees and unions may challenge the methodof abatement in employee and employer contests.\”\u00a0 He notes that a consistentreading of the first and last sentences of ? 10(c) would be resolved in this manner:\”[i]mplementation of an inadequate plan called for in a citation would mean that acitation is never abated.\u00a0 \”Never\” is too long and thereforeconstitutes an unreasonable abatement date under ? 10 (c). See ROTHSTEIN, supra, ? 369,1988 pocket part.See also 85 Columbia L. Rev. 1317, supra, inwhich the author proposes that the Act gives the Review Commission jurisdiction to hearany employee objection to the terms of a settlement agreement in that the ReviewCommission has power to issue all final abatement orders.\u00a0 \”Because anemployer-initiated contest must continue for [the Review Commission] to approve asettlement, employees, participating as \”parties,\” are entitled to object to allaspects of a settlement agreement.\”See, Judge Pollak’s dissent in Marshall v.Sun Petroleum Products, 622 F.2d 1176 (1980).[[10]] Rule 101 concerning \”SettlementJudge procedure\”, which prescribes procedures by which parties may obtain theassistance of mediation by a Settlement Judge, is the only rule to directly address thisissue.\u00a0 With both parties’ consent, a settlement conference may be scheduled. Rule2200.101 (c) (2) states in part that \”The Settlement Judge may recommend that theattorney or other representative who is expected to try the case for each party bepresent, and, without regard to the scope of the attorney’s or other representative’spowers, may also recommend that the parties, or agents having full settlement authority,be present….\” This rule, however, is inapplicable to the circumstances in theinstant matter.”