“Docket No. 88-2265 SECRETARY OF LABOR,Complainant,v.GENERAL ELECTRIC CO.,Respondent.LOCAL 647, UNITED AUTOMOBILE, AEROSPACE,AND AGRICULTURAL IMPLEMENT WORKERSOF AMERICA,Authorized EmployeeRepresentative.OSHRC Docket No. 88-2265DECISION AND ORDERBEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:At issue in this case is an order by Administrative Law JudgePaul L. Brady approving an agreement between the Secretary and Respondent (\”GE”) tosettle citations issued by the Secretary under the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-78. Shortly after GE filed its notice of contest to thecitations, Local 647 of the United Auto Workers (\”the union\”) elected partystatus in accordance with 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 a right toparticipate.\” Thereafter, Judge Brady issued an order granting the union’s requestfor party status and also directed that the union \”be afforded the opportunity formeaningful participation in all proceedings, including settlement agreements.\”The subsequent settlement agreement states that the union wasafforded the opportunity to participate in the negotiations between the Secretary and GEthat resulted in the agreement. Despite this representation, however, the union wrote aletter to the judge in which it asserted that it \”had not been involved or allowed toparticipate in the settlement negotiations as guaranteed selecting party status.\”Although the union wrote its letter before the judge issued his order approving thesettlement agreement, the Judge did not receive this letter after he had issued his order.Accordingly, former Commissioner Arey treated the union’s letter as a petition fordiscretionary review of the judge’s order and directed review. For the reasons thatfollow, we set aside Judge Brady’s order and remand for further proceedings.Two major issues are before us on review. The first concernsthe judge’s preliminary order directing that the union be allowed to participate in thesettlement process. Review was directed on 1) whether the judge had authority to issuesuch an order, 2) whether the Secretary and GE failed to comply with the order, and 3) ifthe order was proper and was violated, what measures the Commission should take inresponse to such violation. The second issue regards the matter of service of thesettlement agreement. Review was also directed on the judge erred by approving thesettlement agreement less than 10 days after it had been served on the union.Addressing the second issue first, we note that the certificateof service accompanying the settlement agreement states that the agreement was served onthe union by mail on December 16, 1986. Nevertheless, the judge entered his orderapproving the settlement agreement on December 21, two days after the judge’s officereceived a copy of the agreement. By not waiting at least 10 days after service beforeapproving the settlement, the judge acted contrary to Commission Rule 100(c) , 29 C.F.R.? 2200.100(c). [[1\/]] This rule is intended to allow employees or their representativeswho have elected, or who still have the opportunity to elect, party status an opportunityto make their objections to the settlement agreement known before the agreement isapproved. [[2\/]] Thus, we conclude that the judge erred by approving the settlementagreement less than 10 days after it was served on the union.We now turn to the issue of whether the union was deniedmeaningful participation in the settlement process. This is an undecided factual issue.The union in its letter to the judge States that it did not participate in settlementnegotiations. Since the settlement agreement avers that the union was permitted toparticipate, a conflict exists in the record that cannot be resolved without additionalevidence. Accordingly, this case is remanded to the judge for findings on whether theunion was afforded the opportunity to participate as required by his order.In evaluating the evidence on remand, the general principlesgoverning Commission review of settlement agreements must be applied. When determiningwhether employees have been denied participation, the legitimate interest of employees inbeing heard must be balanced against the well-settled principle that the Secretary hasprosecutorial discretion in the conduct of a proceeding before the Commission, includingthe right to settle if, in her judgment, a settlement is justified. As the Supreme Courtstated in Cuyahoga Valley Ry. Co. v. United Transportation Union, 474 U.S. 3, 7(1985), \”the detailed statutory scheme . . . contemplates that the rights created bythe Act are to be protected by the Secretary . . . . It is also clear that enforcement ofthe Act is the sole responsibility of the Secretary. . . . \” Id. Therefore,the Court cautioned that the Commission may not take any action that \”woulddiscourage the Secretary from seeking voluntary settlements with employers, thus undulyhampering the enforcement of the Act.\” Id. (emphasis added).A specific constraint on the Commission’s involvement in thesettlement process relates to objections by employees or their representatives tosettlements that have been executed by the Secretary and the employer and submitted forapproval by the commission. It is well-settled that employees may object before theCommission only to the reasonableness of the period of time set forth in a settlementagreement for abatement of violations. Donovan v. Allied Industrial Workers (ArcherDaniels Midland Co.), 760 F.2d 783 (7th Cir. 1985); Donovan v. Local 962,International Chemical Workers Union (Englehard industries), 748 F.2d 1470 (11th cir.1984); 713 F.2d 918 (2nd Cir. 1984); Donovan v. OSHRC (Mobil Oil Corp.), (Cir.1983); Pan American World Airways, 11 BNA OSHC 2003, 1984-85 CCH OSHD ? 26,920(No. 83-249, 1984) (citing cases from other circuits as well). See Cuyahoga Valley(employees may not object to Secretary’s decision to withdraw a citation).At the same time, however, Commission precedent that predatesthese appellate court decisions accords employees the right to \”meaningfulparticipation in the settlement process, including the opportunity to participate insettlement negotiations.\” E.g General Motors Corp., Terex Division, 10BNA OSHC 2020, 2021, 1982 CCH OSHD ? 26,241, p. 33,132 (No. 78-2792, 1982), and casescited therein. The Commission has never articulated precisely what it meant by\”meaningful participation,\” nor has it set forth specifically how employees areto be included in settlement negotiations. [[3\/]] Since it is now established that underthe Act employees have only very limited rights to object to settlement agreements, theycannot be given the same broad, unrestricted opportunity to comment upon, and to requestchanges in, a settlement agreement filed with the Commission that they or theirrepresentatives might 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 their representatives mayelect party status only to the limited extent that their appearance relates to \”anymatter in which the Act confers a right to participate.\” Furthermore, Commission Rule100(b), 29 C.F.R. ? 2200.100(b), which prescribes the requirements for settlement,provides that a settlement agreement must \”state whether any affected employees whohave elected party status have raised an objection to the reasonableness of the abatementtime.\” This rule obligates the Secretary and the employer to ascertain whether theemployees have any objection to the abatement period, the sole issue on which they havethe right to object before the Commission. There is no requirement in the Commission’scurrent rules that the views of the employees be presented to the Commission or aCommission judge on any other matter addressed in a settlement agreement.These comments, however, are not intended to suggest that thereis no mechanism by which employees can be given an opportunity for participation in thesettlement process. Employees may be given such an opportunity by allowing them to presenttheir views on a settlement agreement to the other parties, and particularly to theSecretary, before the agreement is fully executed and filed with the judge. This procedurewould be consistent with other provisions of the Act that grant employees input into thedecisions the Secretary makes in the interest of safeguarding employee health and safety.For example, employees are permitted to submit information to the Secretary in support ofa standard, to participate in a hearing on an employer’s request for a variance from astandard, to accompany an inspector during an inspection and to consult with the inspector\”concerning matters of health and safety in the workplace\”, to request that theSecretary conduct an inspection, and to notify an inspector during an inspection ofviolations 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 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.[[4\/]]Accordingly, we conclude that the Secretary should informemployees or their representatives who have elected party status of settlementnegotiations so that the employees may offer input concerning the proposed settlement tothe Secretary and, for that matter, to the employer as well. The Secretary and theemployer will then have the benefit of the employees’ input, which they may consider indetermining whether to proceed with the settlement. If the Secretary and the employeragree to a settlement, notwithstanding any contrary views or input on the part of theemployees or the union, and present the settlement to the Commission judge for approval,the employees or their representatives are entitled to file objections with the judge, butonly as to the reasonableness of the time period prescribed for abatement. See ReynoldsMetals Co., 7 BNA OSHC 1042, 1046, 1979 CCH OSHD ? 23,295, p. 28,181 (No. 78-2485,1979) (concurring and dissenting opinion). While the Commission can disapprove asettlement agreement on the basis of an employee objection only if the objection pertainsto the reasonableness of the abatement period, we will examine a settlement agreement,submitted for approval by the Commission or a Commission judge, to determine that theemployees have had an opportunity to provide input during the formulation of theagreement. In this way, the legitimate interest of employees in being heard on the termsof a proposed settlement can be accommodated in a manner consistent with the limitedrights of employees or their representatives to object to a settlement agreement once thatagreement has been filed with the Commission or commission judge.[[5\/]]Accordingly, the settlement agreement previously filed in this case and the judge’s orderapproving that agreement are set aside. This matter is remanded to the judge, who may holda hearing, take evidence in the form of sworn affidavits, or follow whatever otherprocedures he deems appropriate to develop a factual record sufficient for him to decidewhether the union, as it alleges, was not permitted to express its views during thesettlement process. In the event the judge concludes that the union was not accorded thatopportunity, the union shall be allowed to submit its position to the other parties forconsideration before any settlement agreement is finalized between the Secretary and GE.Should the Secretary and GE submit an amended settlement agreement to the judge for hisapproval, he shall accord the union the full 10-day period prescribed by our rules forfiling any objections it may have to any abatement period set forth in such agreement. Onthe other hand, if the judge concludes that the union did have an adequate opportunity topresent input during the settlement negotiations, the Secretary and GE may refile theoriginal settlement agreement with the judge, and the judge may then reinstate his priororder approving that settlement.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: August 29,1990SECRETARY OF LABOR,Complainant,v.GENERAL ELECTRIC COMPANY,Respondent,andUNITED AUTOMOBILE,AEROSPACE AND\u00a0 AGRICULTURAL IMPLEMENTWORKERS OF AMERICA, andLOCAL 647,Authorized EmployeeRepresentative.OSHRC Docket No. 88-2265ORDER APPROVING SETTLEMENTA settlement agreement was filed in this case which adequatelyresolves the issues pending before the Commission. The agreement provides for the amendment of the penaltyproposed for Citation 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 beenabated; that it will pay the proposed penalties, as amended, and that it has conformedwith the applicable posting and service requirements as fixed by the rules of thecommission.Therefore, it is ORDERED:1. The motions of the parties are granted and the agreement is hereby approved andincorporated 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$1,350.00 is hereby assessed.4. Citation No. 2, as amended, is affirmed and a penalty in theamount of $600.00 is hereby assessed.Dated this 21st day of December, 1988.PAUL L. BRADYJudgeFOOTNOTES: [[1\/]] In pertinent part, this rule imposes a mandatoryrequirement that: \”[i]f party status has been elected [by employees or an authorizedemployee representative], an order terminating the litigation before the Commissionbecause of the settlement shall not be issued until at least ten 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 all parties and authorizedemployee representatives in the manner prescribed by ? 2200.7(c)\” (emphasis added).As explained in the preamble to the Commission’s rules, \”all parties as well asnon-party authorized 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 moreconcretely because at the time it announced them, it allowed employees wide latitude toobject to any aspect of a settlement agreement, once that agreement was filed with theCommission. E.g., Mobil Oil Corp., 10 BNA 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 to settlement agreement on the ground that the settlement would notabate the hazardous conditions). Subsequently in Pan American, the Commissionoverruled its previous case law on the permissible scope of employee objections andadopted the narrow rule of the Federal courts limiting employee objections to only theabatement period. However, the decision in Pan American did not disturb theCommission’s holdings that 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 settlements before the Commission,as well as the limited role of the Commission in reviewing settlement agreements that havebeen filed with the Commission or a Commission judge for approval.The Commission previously recognized the principle of employeeparticipation in 1986 when it amended its rules on settlement agreements to deletelanguage in the prior version of Rule 100, 29 C.F.R. ? 2200.100, that a settlementagreement would be approved \”when it is consistent with the provisions and objectivesof the Act.\” The Commission reasoned that \”deletion of [this] provision from theCommission’s rules is in keeping with the Commission’s limited role in reviewingsettlement agreements.\” 51 Fed. Reg. 32013 (1986).[[4\/]] We note that Commission Rule 51, 29 C.F.R. ? 2200.51,authorizes the judge to \”direct the parties to confer among themselves toconsider settlement, stipulation of facts, or any other matter that may expedite thehearing\” (emphasis added). The preamble to the Commission’s rules specifically statesthat Rule 51 \”applies to all parties, not just the Secretary and the employer.\”51 Fed. Reg. 32009 (1986). Thus, the judge’s order directing that the union here bepermitted to participate in any settlement negotiations was clearly within his discretionunder the Commission’s rules.[[5\/]] Two of the violations cited here related to fallprotection: a violation of 29 C.F.R. ? 1910.24(b) for providing mobile ladder standsrather than fixed stairs for access from one level to another and a violation of 29 C.F.R.? 1910.132(a) for failure to provide protective equipment for employees working up to 20feet above the floor. In its letter to the judge the union argued that \”additionalcitations should have been issued because of previous records of OSHA citations on fallprotection.\” This contention, that the citations issued did not adequately addressthe hazard in GE’s facility, is precisely the sort of objection that should be voiced tothe Secretary prior to the final settlement, since it directly relates to the Secretary’sprosecutorial discretion.However, the union’s letter also asserts that the unionattended an informal conference after the citations were issued, but before Respondentfiled its notice of contest, at which it advised the Secretary of its concern that furthercitations were warranted. The Secretary’s regulation at 29 C.F.R. ? 1903.19 allows anemployer, affected employee, or representative of employees to request a conference\”for the purpose of discussing any issues raised by an inspection, citation, noticeof proposed penalty, or notice of intention to contest.\” While we recognize that thisregulation does provide a mechanism by which both the Secretary and the employer canreceive input from employees, it is not a substitute for providing employees who elect toparticipate as a party to the Commission proceeding an opportunity to provide input in thesettlement of citations once those citations have been contested and are before theCommission for disposition.”