“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 8932 H. L. VOKES COMPANY \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 26, 1976DECISIONBEFORE BARNAKO, Chairman;MORAN and CLEARY, Commissioners.BY THE COMMISSION:Anorder of Review Commission Judge Erwin L. Stuller, dated October 4, 1974, isbefore this Commission for review pursuant to 29 U.S.C. ? 661(i). Review wasdirected on (1) whether the Judge erred in approving a settlement agreementwhich extended the abatement date of June 28, 1974, as fixed in the originalcitation, to November 26, 1974, and (2) whether there had been a failure tocomply with the Commission Rules of Procedure with regard to service of thesettlement agreement on affected employees.Sincethe extended abatement date is long past; the first directed issue is moot. Asto the second issue, there is evidence that the agreement was posted by therespondent. This constitutes adequate notice to the respondent?s employeesbecause no employee or employee representative has elected party status in thecase. Secretary v. Marine Terminals Corporation, 15 OSAHRC 172 (1975).Moreover, no party has expressed an interest in the directed issues at anystage of the proceedings.Accordingly,the Judge?s order is affirmed.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: JAN 26, 1976?CLEARY, Commissioner,DISSENTING:Idisagree with my colleague?s disposition. The majority decision casts umbrageupon the right of affected employees and their authorized representatives to beeffectively heard when the Secretary and the employer settle a case without ahearing.OnJuly 8, 1974, respondent was cited for failure to abate a violation of section5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651 etseq., [hereinafter cited as the ?Act?] for failure to comply with the safetyand health standard published at 29 CFR ?\u00a01910.107(d)(2)[1], which it had beenpreviously cited for violating on March 22, 1974. The Secretary proposed a $30penalty for respondent?s failure to abate the violation.OnSeptember 25, 1974, the parties executed a settlement agreement in which theSecretary amended the original abatement date from June 28, 1974, to November26, 1974, and respondent paid the proposed penalty, promised to abate theviolative condition by the amended abatement date, and moved to withdraw itsnotice contesting the failure to abate citation. Although a copy of thesettlement agreement was posted at respondent?s workplace, no copy was servedon the authorized employee representative.[2]OnSeptember 30, 1974, the Administrative Law Judge signed an order approving thesettlement agreement. Although only five days had elapsed between submittingthe agreement and the Order, Judge Stuller declared that ?a reasonable time haspassed since the posting of the documents.?Themajority would approve treating the failure of the employee representativeformally to elect to participate in this proceeding before the entry of thesettlement agreement as depriving the representative of party status. This viewis contrary to the Act as well as to the Commission?s rules of procedure.Section10(c) of the Act requires the Commission to provide rules of procedurepermitting affected employees or their representatives to participate asparties in hearings. In accordance with that Congressional mandate, theCommission promulgated rule 20(a),[3] 29 CFR ? 2200.20(a), whichallows employees to elect to participate as parties at any time before thecommencement of the hearing.Clearly,if there is to be a voluntary disposition and a hearing is not held, employeeswishing to exercise their right to participate may not be denied thatopportunity.[4]The service requirement of Commission rule 100(c),[5] 29 CFR ? 2200.100(c), isintended to preserve the right of employees to participate by requiring otherparties to settlement agreements to serve the proposal on affected employeesand their representatives.Evidenceestablishes that the employee representative in this case was never served witha copy of the settlement agreement. Although a copy of the agreement was postedat the workplace, it is not clear that this apprised the employeerepresentative of the provisions of the agreement, or even of its existence.Assumingarguendo that the employee representative was aware of the agreement I do notagree with the Judge that a reasonable time elapsed without objection beforeapproval of the agreement. Only five days elapsed between the parties?submitting the agreement and the Judge?s signing the order approving it. Inthat time it would have been necessary for the employee representative todecide whether to object to any provision of the agreement, to draft a noticeof objection, perhaps after securing counsel, and forward those objections tothe Commission.[6]Theessential purpose of the Act is to protect employees. The consent of employeeswhen they choose to be interested parties is vital to any settlement. When thefailure of employees to object to a settlement may be caused by a lack ofproper service, it is not known if the employees would seek to exercise theirright to participate as parties. Hence, it cannot be said that any silence ontheir part should be construed as consent. American Airlines, Inc., 16OSAHRC 512, 1974?75 CCH OSHD para. 19,108, 2 BNA OSHC 1391 (No. 6087, 1974).Nevertheless,the majority would find that, because the extended abatement date has passed,the case is moot. Such a holding divests this Commission of its authority toassure that the right of employee participation in Commission proceedings isnot infringed. It is our duty to review settlement agreements in order toassure that employee rights are being preserved. This duty cannot berealistically met under the majority?s broad concept of mootness. SeeColeman Co., Inc., No. 7885?P (January 26, 1976) (dissenting opinion).Accordingly,I would reverse the Judge and remand the case with instructions that theemployee representative be given at least ten days[7] in which to object to thesettlement agreement.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 8932 H. L. VOKES COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE:November 04, 1974ORDEROnSeptember 25, 1974, the parties entered into a settlement agreement whereby thecomplainant moved to amend Item 2 of the Citation, the only item in issue, bydeleting June 28, 1974 as the abatement date and setting in its place November26, 1974. The motion was to also correct the Notification of Failure to Correctthe Alleged Violation and of Proposed Penalty to reflect the previously statedamendment. The parties stated that the proposed additional penalty had beenpaid and that the respondent will abate the violation on or prior to November26, 1974. The respondent then moved to withdraw its Notice of Contest to theNotification of Failure to Correct Alleged Violation and proposed additionalpenalty, as amended. The respondent certified that it had posted copies oftheir agreement and motion. As a reasonable time has passed since the postingof the documents without objection having been filed, the motions are GRANTED;the respondent?s Notice of Contest as to the Notification of Failure to CorrectAlleged Violation and of proposed additional penalty, as amended, is withdrawn,and the Notification of Failure to Correct Alleged Violation and of proposedadditional penalty, as amended, is AFFIRMED; and the case is DISMISSED.?Erwin L. StullerJudgeDated: October 04, 1974[1] ? 1910.107 Sprayfinishing using flammable and combustible materials(d) Ventilation(2) General?Allspraying areas shall be provided with mechanical ventilation adequate to removeflammable vapors, mists, or powders to a safe location and to confine andcontrol combustible residues so that life or property is not endangered.Mechanical ventilation shall be kept in operation at all times while sprayingoperations are being conducted and for a sufficient time thereafter to allowvapors from drying coated articles and drying finishing material residue to beexhausted.\u00a0[2] Local #468, InternationalAssociation of Bridge, Structural and Ornamental Iron Workers (AFL-CIO).[3]Rule 20Party Status(a) Affectedemployees may elect to participate as parties at any time before thecommencement of the hearing before the Judge, unless, for good cause shown, theCommission or the Judge allows such election at a later time.\u00a0[4] An example is the following:An authorizedemployee representative intends to participate in a case by appearing at thehearing. Before the hearing the Secretary and the employer enter into asettlement agreement which is not served on the employee representative. TheJudge issues an order approving the agreement. The hearing is cancelled and therepresentative is denied its statutory right of participation.\u00a0[5] Rule 100 Settlement(c) Where partiesto a settlement agree upon a proposal, it shall be served upon represented andunrepresented affected employees in the manner set forth in rule 7 hereof.Proof of such service shall accompany the proposed settlement when submitted tothe Commission or the Judge.[6] It should benoted that the settlement agreement was signed on Wednesday, September 25,1974, and approved by the Judge on Monday, September 30, 1974. Therefore,assuming expeditious posting, the employee representative had only threework-days in which to comment on the agreement.\u00a0[7] See CommissionRule 37, 29 CFR ? 2200.37, which allows any party or intervenor 10 days fromservice of a motion to file a response. “