“Docket No. 78-0910 78-2809 SECRETARY OF LABOR,Complainant,v.FARMERS EXPORT COMPANY,Respondent.OSHRC Docket Nos. 78-0910 & 78-2809DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY andCOTTINE, Commissioners.BY THE COMMISSION:A decision of Administrative Law Judge StanleyM. Schwartz is before the Commission 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\”).\u00a0 Judge Schwartz approved a settlement agreement between theSecretary of Labor and Farmer’s Export Company in which Farmers Export stated that,because it no longer owned, controlled, or operated the grain export facility involved inthe citations in these cases, the company could not abate the cited conditions and couldnot serve a copy of the settlement upon the affected employees.\u00a0 For the followingreasons, we modify the judge’s decision.IThe Secretary issued the citations in thesecases following a December 1977 explosion at Farmers Export’s export grain elevator inGalveston, Texas.\u00a0 The citations alleged a considerable number of serious and willfulviolations.\u00a0 Immediate abatement was required and penalties totaling $126,000 in thetwo cases were proposed.\u00a0 Farmers Export contested the citations and the FarmersExport Grain Handlers Union elected party status.According to statements made by the Secretaryand Farmers Export during the proceedings in these cases the Galveston grain elevator wasnot in operation and was under reconstruction for a time following the explosion. \u00a0Reconstruction was expected to be completed by mid-1980.\u00a0 Then, in June 1981, thereconstructed grain elevator was sold.Sometime prior to the sale, the Farmers ExportGrain Handlers Union merged with the Carpenter’s District Council in Houston, Texas, andbecame an affiliate of the carpenter’s union.\u00a0 Also, by the time of the sale, thepresident of the Farmers Export Grain Handlers Union who had elected party status onbehalf of this union in these cases was no longer employed by Farmers Export.\u00a0 Also,after the sale, Farmers Export did not know who was the president of the carpenter’sunion.\u00a0 Although the judge served a notice of the pre-hearing conference held inthese cases on the former president of the Farmers Export Grain Handlers Union, norepresentative of affected employees appeared at the hearing.In the settlement agreement which was submittedby the Secretary and Farmers Export after the pre-hearing conference, the Secretary agreedto withdraw certain citation items, amend or recharacterize other items, and reduce theproposed penalties to a total of $8,000.\u00a0 Farmers Export agreed to withdraw itsnotice of contest to the amended or recharacterized citation items and to pay the reducedproposed penalties.\u00a0 With respect to abatement of the violations and service of thesettlement agreement upon affected employees, the settlement agreement stated:Respondent states that Respondent does not nowown, control or operated the Galveston, Texas export grain elevator which was the subjectof [the citations]. . . .Therefore, the parties agree as follows: (a) Respondent is unableto abate any condition or practice which was the subject of [the citations]. . . . ., asamended by this Settlement Agreement; (b) Respondent is unable to serve a copy of thisSettlement Agreement upon any employee.IIJudge Schwart approved the settlement agreement.\u00a0 However, noting that the Commission has required abatement and service uponaffected employees for approval of a settlement agreement, the judge made the following\”advisory comments to the Secretary concerning future precautionary actionssubsequent to approval of this agreement\”:The Secretary should provide a copy of mydecision and the settlement agreement to the new management and the employeerepresentatives at the reconstructed grain elevator.\u00a0 The purpose of this is toprovide information on the conditions and practices spelled out in the agreement.\u00a0These can be reviewed on a self-inspection basis.\u00a0 In addition the Secretaryshould arrange a speedy monitoring of this new facility.\u00a0 The exact nature of theinspection program is within the discretion of OSHA.\u00a0 However its technical personnelshould use the knowledge gleaned from this case to assure the safety of those employeesworking at the reconstructed elevator.\u00a0 The sale of the elevator should not mark thecessation of a joint effort by management, employees, and the government to achieve a safeenvironment at the Galveston, Texas, grain elevator.Judge Schwart also indicated that the Secretaryshould distribute a portion of the settlement agreement–the paragraph concerning the useof spark arrestors on locomotives operated in the grain export facility–as a memo to hisown personnel for their use in compliance efforts.Upon his own motion, Commissioner Cottinedirected review on the following issues:1.\u00a0 Whether the judge erred in approvingthe settlement agreement in the absence of service on affected employees or theirauthorized representative.\u00a0 See Commission Rule 100(c), 29 C.F.R. ? 2200.100(c).2.\u00a0 Whether the judge erred in approvingthe settlement agreement as consistent with the provisions of Commission Rule 100(a) &(b), 29 C.F.R. ?? 2200.100(a), (b).IIIFor a settlement agreement to be approved by theCommission, it must be \”consistent with the provisions and objectives of theAct.\”\u00a0 29 C.F.R. ? 2200.100(a); see John Deere Foundry, 81 OSAHRC 14\/B9, 9 BNAOSHC 1351, 1981 CCH OSHD ? 25,218 (No. 78-5498, 1981).\u00a0 Every settlement agreementmust include \”[a] statement that the cited condition has been abated or a statementof the date by which abatement will be accomplished.\”\u00a0 29 C.F.R. ?2200.100(b)(3); see Raybestos Friction Materials Co., 80 OSAHRC 111\/E14, 9 BNA OSHC 1141,1980 CCH OSHD ? 24,910 (No. 80-2793, 1980); see also Nashua Corp., 80 OSAHRC 121\/A2, 9BNA OSHC 1113, 1981 CCH OSHD ? 25,020 (No. 78-2146, 1980) (majority and dissentingopinions). \u00a0 Also, when a settlement agreement is filed, it must be served on theaffected employees.\u00a0 29 C.F.R. ? 2200.100(c).[[1]]\u00a0 See General Motors Corp.,Texas Division, 82 OSAHRC\u00a0\u00a0\u00a0\u00a0\u00a0 , 10 BNA OSHC 2020, 82 CCH OSHD ?26,241 (No. 78-2792, 1982), and Whirlpool Corp., 82 OSAHRC\u00a0\u00a0\u00a0 , 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 longerhas any control over conditions at the Galveston Grain Elevator, the company cannot beexpected actually to abate any of the violations involved in these areas.\u00a0Accordingly, we waive the requirement of Rule 100(b)(3) for a statement promisingabatement.\u00a0 See 29 C.F.R. ? 2200.108. [[2]]\u00a0 See also Nashua Corp., supra;Asarco, Inc., El Paso Division, 80 OSAHRC 99\/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, 1980CCH OSHD ? 24,758 (No. 15965, 1980), aff’d without opinion, No. 81-2269 (D.C. Cir. 1982).\u00a0However, as a condition of approval of this settlement agreement, Farmers Export, asthe cited employer, must send a copy of this decision and the settlement agreement to thenew owner of the Galveston export grain facility.Similarly, while Farmers Export cannot beexpected to post the settlement agreement at the grain elevator as required by Rules100(c) and 7(g), the company can mail a copy of the settlement agreement and this decisionto the Carpenter’s District Council in Houston.\u00a0 At the time the citations wereissued and contested, the Farmers Export Grain Handlers Union represented employees at thegrain elevator and this union elected party status in this proceeding.\u00a0 The recordshows that this union merged with the Carpenters District Council in Houston prior to thetime Farmers Export sold the grain elevator.\u00a0 Accordingly, we condition approval ofthe settlement agreement on service of the settlement agreement and our decision on theCarpenter’s District Council in Houston.We affirm the judge’s decision upon thecondition that the parties submit a certification to the Executive Secretary of theCommission showing that Farmers Export has mailed copies of this decision and thesettlement agreement to the new owner of the Galveston Export grain elevator and to theCarpenter’s District Council in Houston, Texas.\u00a0 This certification must be receivedwithin twenty days of issuance of this order.\u00a0 The affected employees will beafforded ten days following receipt of the decision and settlement agreement to submit tothe Commission any objections they may have regarding the settlement agreement.\u00a0 SOORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated:\u00a0 MAR 31 1983The Administrative Law Judge decision in this matter is unavailable in this format.\u00a0 To obtain a copy of this document, please request one from our Public InformationOffice by e-mail ( [email protected] ),telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES:[[1]] 29 C.F.R. ?? 2200.100(c) provides:Filing; service and notice.\u00a0 When a settlement proposal is filed withthe Judge or Commission, it shall also be served upon represented and unrepresentedaffected employees in the manner prescribed for notices of contest in ? 2200.7. \u00a0Proof of service shall accompany the settlement proposal.\u00a0 A settlement proposalshall not be approved until at least 10 days following service of the settlement proposalon affected employees.[[2]]\u00a0 29 C.F.R. ? 2200.108 states:In special circumstances not contemplated by the provisions of these rules,or for good cause shown, the Commission may, upon applications by any party or intervenor,or on its own motion, after 3 days notice to all parties and intervenors, waive any ruleor make such orders as justice 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 being waived, for both ofthe parties already have agreed in their settlement agreement that abatement cannot beperformed in these cases.\u00a0 The affected employees will receive notice and have anopportunity to comment upon receipt of service of copies of this decision and thesettlement agreement, as discussed infra.\u00a0″