“SECRETARY OF LABOR,Complainant,v.FARMERS EXPORT COMPANY,Respondent.OSHRC Docket Nos. 78-0910 & 78-2809_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:A decision of Administrative Law Judge Stanley M. Schwartz is before theCommission for review pursuant to sections 12(j), 29 U.S.C. ?? 661(i),of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678(\”the Act\”). Judge Schwartz approved a settlement agreement between theSecretary of Labor and Farmer’s Export Company in which Farmers Exportstated that, because it no longer owned, controlled, or operated thegrain export facility involved in the citations in these cases, thecompany could not abate the cited conditions and could not serve a copyof the settlement upon the affected employees. For the followingreasons, we modify the judge’s decision.IThe Secretary issued the citations in these cases following a December1977 explosion at Farmers Export’s export grain elevator in Galveston,Texas. The citations alleged a considerable number of serious andwillful violations. Immediate abatement was required and penaltiestotaling $126,000 in the two cases were proposed. Farmers Exportcontested the citations and the Farmers Export Grain Handlers Unionelected party status.According to statements made by the Secretary and Farmers Export duringthe proceedings in these cases the Galveston grain elevator was not inoperation and was under reconstruction for a time following theexplosion. Reconstruction was expected to be completed by mid-1980. Then, in June 1981, the reconstructed grain elevator was sold.Sometime prior to the sale, the Farmers Export Grain Handlers Unionmerged with the Carpenter’s District Council in Houston, Texas, andbecame an affiliate of the carpenter’s union. Also, by the time of thesale, the president of the Farmers Export Grain Handlers Union who hadelected party status on behalf of this union in these cases was nolonger employed by Farmers Export. Also, after the sale, Farmers Exportdid not know who was the president of the carpenter’s union. Althoughthe judge served a notice of the pre-hearing conference held in thesecases on the former president of the Farmers Export Grain HandlersUnion, no representative of affected employees appeared at the hearing.In the settlement agreement which was submitted by the Secretary andFarmers Export after the pre-hearing conference, the Secretary agreed towithdraw certain citation items, amend or recharacterize other items,and reduce the proposed penalties to a total of $8,000. Farmers Exportagreed to withdraw its notice of contest to the amended orrecharacterized citation items and to pay the reduced proposedpenalties. With respect to abatement of the violations and service ofthe settlement agreement upon affected employees, the settlementagreement stated:Respondent states that Respondent does not now own, control or operatedthe Galveston, Texas export grain elevator which was the subject of [thecitations]. . . .Therefore, the parties agree as follows: (a) Respondentis unable to abate any condition or practice which was the subject of[the citations]. . . . ., as amended by this Settlement Agreement; (b)Respondent is unable to serve a copy of this Settlement Agreement uponany employee.IIJudge Schwart approved the settlement agreement. However, noting thatthe Commission has required abatement and service upon affectedemployees for approval of a settlement agreement, the judge made thefollowing \”advisory comments to the Secretary concerning futureprecautionary actions subsequent to approval of this agreement\”:The Secretary should provide a copy of my decision and the settlementagreement to the new management and the employee representatives at thereconstructed grain elevator. The purpose of this is to provideinformation on the conditions and practices spelled out in theagreement. These can be reviewed on a self-inspection basis. Inaddition the Secretary should arrange a speedy monitoring of this newfacility. The exact nature of the inspection program is within thediscretion of OSHA. However its technical personnel should use theknowledge gleaned from this case to assure the safety of those employeesworking at the reconstructed elevator. The sale of the elevator shouldnot mark the cessation of a joint effort by management, employees, andthe government to achieve a safe environment at the Galveston, Texas,grain elevator.Judge Schwart also indicated that the Secretary should distribute aportion of the settlement agreement–the paragraph concerning the use ofspark arrestors on locomotives operated in the grain export facility–asa memo to his own personnel for their use in compliance efforts.Upon his own motion, Commissioner Cottine directed review on thefollowing issues:1. Whether the judge erred in approving the settlement agreement in theabsence of service on affected employees or their authorizedrepresentative. See Commission Rule 100(c), 29 C.F.R. ? 2200.100(c).2. Whether the judge erred in approving the settlement agreement asconsistent with the provisions of Commission Rule 100(a) & (b), 29C.F.R. ?? 2200.100(a), (b).IIIFor a settlement agreement to be approved by the Commission, it must be\”consistent with the provisions and objectives of the Act.\” 29 C.F.R. ?2200.100(a); see John Deere Foundry, 81 OSAHRC 14\/B9, 9 BNA OSHC 1351,1981 CCH OSHD ? 25,218 (No. 78-5498, 1981). Every settlement agreementmust include \”[a] statement that the cited condition has been abated ora statement of the date by which abatement will be accomplished.\” 29C.F.R. ? 2200.100(b)(3); see Raybestos Friction Materials Co., 80 OSAHRC111\/E14, 9 BNA OSHC 1141, 1980 CCH OSHD ? 24,910 (No. 80-2793, 1980);see also Nashua Corp., 80 OSAHRC 121\/A2, 9 BNA OSHC 1113, 1981 CCH OSHD? 25,020 (No. 78-2146, 1980) (majority and dissenting opinions). Also,when a settlement agreement is filed, it must be served on the affectedemployees. 29 C.F.R. ? 2200.100(c).[[1]] See General Motors Corp.,Texas Division, 82 OSAHRC , 10 BNA OSHC 2020, 82 CCH OSHD ? 26,241(No. 78-2792, 1982), and Whirlpool Corp., 82 OSAHRC , 10 BNA OSHC1992, 1982 CCH OSHD ? 26,237 (No. 78-3930, 1982), appeal filed, No.82-2665 (8th Cir. Oct. 21, 1982).In this case, because Farmers Export no longer has any control overconditions at the Galveston Grain Elevator, the company cannot beexpected actually to abate any of the violations involved in theseareas. Accordingly, we waive the requirement of Rule 100(b)(3) for astatement promising abatement. See 29 C.F.R. ? 2200.108. [[2]] Seealso Nashua Corp., supra; Asarco, Inc., El Paso Division, 80 OSAHRC99\/A3, 8 BNA OSHC 2156, 1980 CCH OSHD ? 24,838 (No. 79-6850, 1980);Maxwell Wirebound Box Co., 80 OSAHRC 84\/D11, 8 BNA OSHC 1995, 1980 CCHOSHD ? 24,758 (No. 15965, 1980), aff’d without opinion, No. 81-2269(D.C. Cir. 1982). However, as a condition of approval of thissettlement agreement, Farmers Export, as the cited employer, must send acopy of this decision and the settlement agreement to the new owner ofthe Galveston export grain facility.Similarly, while Farmers Export cannot be expected to post thesettlement agreement at the grain elevator as required by Rules 100(c)and 7(g), the company can mail a copy of the settlement agreement andthis decision to the Carpenter’s District Council in Houston. At thetime the citations were issued and contested, the Farmers Export GrainHandlers Union represented employees at the grain elevator and thisunion elected party status in this proceeding. The record shows thatthis union merged with the Carpenters District Council in Houston priorto the time Farmers Export sold the grain elevator. Accordingly, wecondition approval of the settlement agreement on service of thesettlement agreement and our decision on the Carpenter’s DistrictCouncil in Houston.We affirm the judge’s decision upon the condition that the partiessubmit a certification to the Executive Secretary of the Commissionshowing that Farmers Export has mailed copies of this decision and thesettlement agreement to the new owner of the Galveston Export grainelevator and to the Carpenter’s District Council in Houston, Texas. This certification must be received within twenty days of issuance ofthis order. The affected employees will be afforded ten days followingreceipt of the decision and settlement agreement to submit to theCommission any objections they may have regarding the settlementagreement. SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: MAR 31 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request onefrom our Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386). FOOTNOTES:[[1]] 29 C.F.R. ?? 2200.100(c) provides:Filing; service and notice. When a settlement proposal is filed withthe Judge or Commission, it shall also be served upon represented andunrepresented affected employees in the manner prescribed for notices ofcontest in ? 2200.7. Proof of service shall accompany the settlementproposal. A settlement proposal shall not be approved until at least 10days following service of the settlement proposal on affected employees.[[2]] 29 C.F.R. ? 2200.108 states:In special circumstances not contemplated by the provisions of theserules, or for good cause shown, the Commission may, upon applications byany party or intervenor, or on its own motion, after 3 days notice toall parties and intervenors, waive any rule or make such orders asjustice or the administration of the Act requires.In this case, it is unnecessary for the Commission to give notice to theSecretary and Farmers Export that the abatement requirement is beingwaived, for both of the parties already have agreed in their settlementagreement that abatement cannot be performed in these cases. Theaffected employees will receive notice and have an opportunity tocomment upon receipt of service of copies of this decision and thesettlement agreement, as discussed infra. “