“SECRETARY OF LABOR,Complainant,v.GENERAL ELECTRIC CO.,Respondent.LOCAL 647, UNITED AUTOMOBILE, AEROSPACE,AND AGRICULTURAL IMPLEMENT WORKERSOF AMERICA,Authorized EmployeeRepresentative.OSHRC Docket No. 88-2265_DECISION AND ORDER_BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:At issue in this case is an order by Administrative Law Judge Paul L.Brady approving an agreement between the Secretary and Respondent(\”GE”) to settle citations issued by the Secretary under theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-78. Shortlyafter GE filed its notice of contest to the citations, Local 647 of theUnited Auto Workers (\”the union\”) elected party status in accordancewith the provisions of Commission Rule 20(a), 29 C.F.R. ? 2200.20(a),which grants employees and their authorized representatives the right toappear as parties \”concerning any matter in which the Act confers aright to participate.\” Thereafter, Judge Brady issued an order grantingthe union’s request for party status and also directed that the union\”be afforded the opportunity for meaningful participation in allproceedings, including settlement agreements.\”The subsequent settlement agreement states that the union was affordedthe opportunity to participate in the negotiations between the Secretaryand GE that resulted in the agreement. Despite this representation,however, the union wrote a letter to the judge in which it asserted thatit \”had not been involved or allowed to participate in the settlementnegotiations as guaranteed selecting party status.\” Although the unionwrote its letter before the judge issued his order approving thesettlement agreement, the Judge did not receive this letter after he hadissued his order. Accordingly, former Commissioner Arey treated theunion’s letter as a petition for discretionary review of the judge’sorder and directed review. For the reasons that follow, we set asideJudge Brady’s order and remand for further proceedings.Two major issues are before us on review. The first concerns the judge’spreliminary order directing that the union be allowed to participate inthe settlement process. Review was directed on 1) whether the judge hadauthority to issue such an order, 2) whether the Secretary and GE failedto comply with the order, and 3) if the order was proper and wasviolated, what measures the Commission should take in response to suchviolation. The second issue regards the matter of service of thesettlement agreement. Review was also directed on the judge erred byapproving the settlement agreement less than 10 days after it had beenserved on the union.Addressing the second issue first, we note that the certificate ofservice accompanying the settlement agreement states that the agreementwas served on the union by mail on December 16, 1986. Nevertheless, thejudge entered his order approving the settlement agreement on December21, two days after the judge’s office received a copy of the agreement.By not waiting at least 10 days after service before approving thesettlement, the judge acted contrary to Commission Rule 100(c) , 29C.F.R. ? 2200.100(c). [[1\/]] This rule is intended to allow employees ortheir representatives who have elected, or who still have theopportunity to elect, party status an opportunity to make theirobjections to the settlement agreement known before the agreement isapproved. [[2\/]] Thus, we conclude that the judge erred by approving thesettlement agreement less than 10 days after it was served on the union.We now turn to the issue of whether the union was denied meaningfulparticipation in the settlement process. This is an undecided factualissue. The union in its letter to the judge States that it did notparticipate in settlement negotiations. Since the settlement agreementavers that the union was permitted to participate, a conflict exists inthe record that cannot be resolved without additional evidence.Accordingly, this case is remanded to the judge for findings on whetherthe union was afforded the opportunity to participate as required by hisorder.In evaluating the evidence on remand, the general principles governingCommission review of settlement agreements must be applied. Whendetermining whether employees have been denied participation, thelegitimate interest of employees in being heard must be balanced againstthe well-settled principle that the Secretary has prosecutorialdiscretion in the conduct of a proceeding before the Commission,including the right to settle if, in her judgment, a settlement isjustified. As the Supreme Court stated in _Cuyahoga Valley Ry. Co. v.United Transportation Union, _474 U.S. 3, 7 (1985), \”the detailedstatutory scheme . . . contemplates that the rights created by the Actare to be protected by the Secretary . . . . It is also clear thatenforcement of the Act is the sole responsibility of the Secretary. . .. \” _Id._ Therefore, the Court cautioned that the Commission may nottake any action that \”would discourage the Secretary from seekingvoluntary settlements with employers, _thus unduly hampering theenforcement of the Act_.\” _Id_. (emphasis added).A specific constraint on the Commission’s involvement in the settlementprocess relates to objections by employees or their representatives tosettlements that have been executed by the Secretary and the employerand submitted for approval by the commission. It is well-settled thatemployees may object before the Commission only to the reasonableness ofthe period of time set forth in a settlement agreement for abatement ofviolations. _Donovan v. Allied Industrial Workers (Archer DanielsMidland Co.),_ 760 F.2d 783 (7th Cir. 1985);_Donovan v. Local 962,International Chemical Workers Union (Englehard industries),_ 748 F.2d1470 (11th cir. 1984); 713 F.2d 918 (2nd Cir. 1984); _Donovan v. OSHRC(Mobil Oil Corp.),_ (Cir. 1983); _Pan American World Airways,_ 11 BNAOSHC 2003, 1984-85 CCH OSHD ? 26,920 (No. 83-249, 1984) (citing casesfrom other circuits as well). _See Cuyahoga Valley_ (employees may notobject to Secretary’s decision to withdraw a citation).At the same time, however, Commission precedent that predates theseappellate court decisions accords employees the right to \”meaningfulparticipation in the settlement process, including the opportunity toparticipate in settlement negotiations.\” _E.g_ _General Motors Corp.,Terex Division,_ 10 BNA OSHC 2020, 2021, 1982 CCH OSHD ? 26,241, p.33,132 (No. 78-2792, 1982), and cases cited therein. The Commission hasnever articulated precisely what it meant by \”meaningful participation,\”nor has it set forth specifically how employees are to be included insettlement negotiations. [[3\/]] Since it is now established that underthe Act employees have only very limited rights to object to settlementagreements, they cannot be given the same broad, unrestrictedopportunity to comment upon, and to request changes in, a settlementagreement filed with the Commission that they or their representativesmight have had under prior case law. In this regard, we note that underCommission Rule 20(a), 29 C.F.R. ? 2200.20(a), employees and theirrepresentatives may elect party status only to the limited extent thattheir appearance relates to \”any matter in which the Act confers a rightto participate.\” Furthermore, Commission Rule 100(b), 29 C.F.R. ?2200.100(b), which prescribes the requirements for settlement, providesthat a settlement agreement must \”state whether any affected employeeswho have elected party status have raised an objection to thereasonableness of the abatement time.\” This rule obligates the Secretaryand the employer to ascertain whether the employees have any objectionto the abatement period, the sole issue on which they have the right toobject before the Commission. There is no requirement in theCommission’s current rules that the views of the employees be presentedto the Commission or a Commission judge on any other matter addressed ina settlement agreement.These comments, however, are not intended to suggest that there is nomechanism by which employees can be given an opportunity forparticipation in the settlement process. Employees may be given such anopportunity by allowing them to present their views on a settlementagreement to the other parties, and particularly to the Secretary,before the agreement is fully executed and filed with the judge. Thisprocedure would be consistent with other provisions of the Act thatgrant employees input into the decisions the Secretary makes in theinterest of safeguarding employee health and safety. For example,employees are permitted to submit information to the Secretary insupport of a standard, to participate in a hearing on an employer’srequest for a variance from a standard, to accompany an inspector duringan inspection and to consult with the inspector \”concerning matters ofhealth and safety in the workplace\”, to request that the Secretaryconduct an inspection, and to notify an inspector during an inspectionof violations that may exist. Sections 6(b)(1), 6(b)(6)(A), 6 (d)-(f);29 U.S.C.? ? 655(b)(1), 655(b)(6)(A), 655 (d)-(f). Thus, consistent withthe overall scheme of the statute and the obvious importance of ensuringthat employees have a chance to be heard, we are of the opinion thatwhen enforcement proceedings have been initiated before the Commissionand the Secretary proposes to settle the case, any input offered by theaffected employees should be received at some point before a settlementagreement is executed between the Secretary and the employer.[[4\/]]Accordingly, we conclude that the Secretary should inform employees ortheir representatives who have elected party status of settlementnegotiations so that the employees may offer input concerning theproposed settlement to the Secretary and, for that matter, to theemployer as well. The Secretary and the employer will then have thebenefit of the employees’ input, which they may consider in determiningwhether to proceed with the settlement. If the Secretary and theemployer agree to a settlement, notwithstanding any contrary views orinput on the part of the employees or the union, and present thesettlement to the Commission judge for approval, the employees or theirrepresentatives are entitled to file objections with the judge, but onlyas to the reasonableness of the time period prescribed forabatement._See Reynolds Metals Co., _7 BNA OSHC 1042, 1046, 1979 CCHOSHD ? 23,295, p. 28,181 (No. 78-2485, 1979) (concurring and dissentingopinion). While the Commission can disapprove a settlement agreement onthe basis of an employee objection only if the objection pertains to thereasonableness of the abatement period, we will examine a settlementagreement, submitted for approval by the Commission or a Commissionjudge, to determine that the employees have had an opportunity toprovide input during the formulation of the agreement. In this way, thelegitimate interest of employees in being heard on the terms of aproposed settlement can be accommodated in a manner consistent with thelimited rights of employees or their representatives to object to asettlement agreement once that agreement has been filed with theCommission or commission judge.[[5\/]]Accordingly, the settlement agreement previously filed in this case andthe judge’s order approving that agreement are set aside. This matter isremanded to the judge, who may hold a hearing, take evidence in the formof sworn affidavits, or follow whatever other procedures he deemsappropriate to develop a factual record sufficient for him to decidewhether the union, as it alleges, was not permitted to express its viewsduring the settlement process. In the event the judge concludes that theunion was not accorded that opportunity, the union shall be allowed tosubmit its position to the other parties for consideration before anysettlement agreement is finalized between the Secretary and GE. Shouldthe Secretary and GE submit an amended settlement agreement to the judgefor his approval, he shall accord the union the full 10-day periodprescribed by our rules for filing any objections it may have to anyabatement period set forth in such agreement. On the other hand, if thejudge concludes that the union did have an adequate opportunity topresent input during the settlement negotiations, the Secretary and GEmay refile the original settlement agreement with the judge, and thejudge may then reinstate his prior order approving that settlement.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: August 29,1990————————————————————————SECRETARY OF LABOR,Complainant,v.GENERAL ELECTRIC COMPANY,Respondent,andUNITED AUTOMOBILE,AEROSPACE AND AGRICULTURAL IMPLEMENTWORKERS OF AMERICA, andLOCAL 647,Authorized EmployeeRepresentative.OSHRC Docket No. 88-2265_ORDER APPROVING SETTLEMENT_A settlement agreement was filed in this case which adequately resolvesthe issues pending before the Commission.The agreement provides for the amendment of the penalty proposed forCitation No. 1 and amendment of the citation and penalty proposed forCitation No. 2 and allows respondent to withdraw its notice of contest.Respondent represents that the alleged violations have been abated; thatit will pay the proposed penalties, as amended, and that it hasconformed with the applicable posting and service requirements as fixedby the rules of the commission.Therefore, it is ORDERED:1. The motions of the parties are granted and the agreement is herebyapproved and incorporated as part of this order.2. The notice of contest is hereby dismissed.?3. Citation No. 1 is affirmed and a penalty in the amount of $1,350.00is hereby assessed.4. Citation No. 2, as amended, is affirmed and a penalty in the amountof $600.00 is hereby assessed.Dated this 21st day of December, 1988.PAUL L. BRADYJudge————————————————————————FOOTNOTES:[[1\/]] In pertinent part, this rule imposes a mandatory requirementthat: \”[i]f party status has been elected [by employees or an authorizedemployee representative], an order terminating the litigation before theCommission because of the settlement shall not be issued until at leastten days after service.\”[[2\/]] This rule also is intended to insure that _all _employeerepresentatives have notice of the terms of a settlement agreement.Thus, Rule 100(c) requires service of the settlement agreement \”upon allparties _and_ authorized employee representatives in the mannerprescribed by ? 2200.7(c)\” (emphasis added). As explained in thepreamble to the Commission’s rules, \”all parties _as well as_ non-partyauthorized employee representatives must be served in accordance with ?2200.7 (c).\” 51 Fed. Reg. 32014 (1986) (emphasis added).[[3\/]] The Commission did not define these principles more concretelybecause at the time it announced them, it allowed employees widelatitude to object to any aspect of a settlement agreement, once thatagreement was filed with the Commission._E.g._, _Mobil Oil Corp.,_ 10BNA OSHC 1905, 1919, 1982 CCH OSHD ? 26,187, p. 33,033 (No. 77-4386,1982), _rev’d, _713 F.2d 918 (2d Cir. 1983) (employees may object tosettlement agreement on the ground that the settlement would not abatethe hazardous conditions). Subsequently in _Pan American,_ theCommission overruled its previous case law on the permissible scope ofemployee objections and adopted the narrow rule of the Federal courtslimiting employee objections to only the abatement period. However, thedecision in _Pan American_ did not disturb the Commission’s holdingsthat employees may participate in the settlement process. Nevertheless,the scope of such participation must be viewed in light of the limitedopportunity employees have to object to fully executed settlementsbefore the Commission, as well as the limited role of the Commission inreviewing settlement agreements that have been filed with the Commissionor a Commission judge for approval.The Commission previously recognized the principle of employeeparticipation in 1986 when it amended its rules on settlement agreementsto delete language in the prior version of Rule 100, 29 C.F.R. ?2200.100, that a settlement agreement would be approved \”when it isconsistent with the provisions and objectives of the Act.\” TheCommission reasoned that \”deletion of [this] provision from theCommission’s rules is in keeping with the Commission’s limited role inreviewing settlement agreements.\” 51 Fed. Reg. 32013 (1986).[[4\/]] We note that Commission Rule 51, 29 C.F.R. ? 2200.51, authorizesthe judge to \”direct the parties to confer _among themselves_ toconsider settlement, stipulation of facts, or any other matter that mayexpedite the hearing\” (emphasis added). The preamble to the Commission’srules specifically states that Rule 51 \”applies to all parties, not justthe Secretary and the employer.\” 51 Fed. Reg. 32009 (1986). Thus, thejudge’s order directing that the union here be permitted to participatein any settlement negotiations was clearly within his discretion underthe Commission’s rules.[[5\/]] Two of the violations cited here related to fall protection: aviolation of 29 C.F.R. ? 1910.24(b) for providing mobile ladder standsrather than fixed stairs for access from one level to another and aviolation of 29 C.F.R. ? 1910.132(a) for failure to provide protectiveequipment for employees working up to 20 feet above the floor. In itsletter to the judge the union argued that \”additional citations shouldhave been issued because of previous records of OSHA citations on fallprotection.\” This contention, that the citations issued did notadequately address the hazard in GE’s facility, is precisely the sort ofobjection that should be voiced to the Secretary prior to the finalsettlement, since it directly relates to the Secretary’s prosecutorialdiscretion.However, the union’s letter also asserts that the union attended aninformal conference after the citations were issued, but beforeRespondent filed its notice of contest, at which it advised theSecretary of its concern that further citations were warranted. TheSecretary’s regulation at 29 C.F.R. ? 1903.19 allows an employer,affected employee, or representative of employees to request aconference \”for the purpose of discussing any issues raised by aninspection, citation, notice of proposed penalty, or notice of intentionto contest.\” While we recognize that this regulation does provide amechanism by which both the Secretary and the employer can receive inputfrom employees, it is not a substitute for providing employees who electto participate as a party to the Commission proceeding an opportunity toprovide input in the settlement of citations once those citations havebeen contested and are before the Commission for disposition.”