” Matt J. Zaich Construction Co., Docket No. 756var gAgent = navigator.userAgent.toLowerCase()var gWindows = ( (gAgent.indexOf( \”win\” ) != -1 ) || ( gAgent.indexOf( \”16bit\” ) != -1 ) )var gIE = ( gAgent.indexOf( \”msie\” ) != -1 )var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) )var floatwnd = 0var WPFootnote1 = ‘\u00a0Respondent argues that he need not admit. That isn\u2019t the question in the case.\\’var WPFootnote2 = ‘\u00a0Insofar as the record shows no implication is to be drawn that this label applies to this Respondent in any manner\\whatsoever.\\’function WPShow( WPid, WPtext ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘visible’\” ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( \”\”, \”comment\”, \”toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1\” ); floatwnd.document.open( \”text\/html\”, \”replace\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( \” p { margin-top:0px; margin-bottom:1px; } \\\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( WPtext ); floatwnd.document.write( ‘Close’); floatwnd.document.write( \”\” ); floatwnd.document.close(); floatwnd.focus(); }}function WPHide( WPid ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘hidden’\” );}p{\tmargin-top: 0px;\tmargin-bottom: 1px}table{\tborder-collapse: collapse;\tborder-spacing: 0pt;\tborder-color: black;\tempty-cells: show;\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\tfont-weight: normal;\tfont-style: normal}td{\tborder-color: black}td.table1column1{\tpadding-left: 0.075in;\tpadding-right: 0.0816667in}td.table1column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}span.WPFloatStyle{\tvisibility: hidden;\tposition: absolute;\tleft: 10px;\tright: 10px;\tbackground-color: rgb(255, 255, 225);\tborder-width: 1px;\tborder-style: solid;\tborder-color: black;\tmargin-top: 25px;\tpadding: 6px;\tline-height: normal}span.WPNormal{\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\tfont-weight: normal;\tfont-style: normal;\tfont-variant: normal;\ttext-align: left;\ttext-decoration: none;\tcolor: black;\tvertical-align: middle;\ttext-indent: 0in}hr{\theight: 0.0125in;\tbackground-color: black}td.table2column1{\tpadding-left: 0.075in;\tpadding-right: 0.0816667in}td.table2column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}body{\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\tfont-weight: normal;\tfont-style: normal;\tmargin-left: 0.075in;\tpadding-left: 0.1in}UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v. OSHRC DOCKET NO. 756MATT J. ZAICH CONSTRUCTION CO.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0\u00a0ORDER OF REMANDApril 27, 1973Before VAN NAMEE and BURCH, CommissionersVAN NAMEE, COMMISSIONER:On October 5, 1972, Judge James A. Cronin, Jr., issued an Order affirming theComplainant\u2019s citation and proposed penalties in accordance with the terms of a settlementagreement executed between the parties on September 18, 1972.On November 9, 1972, I directed that the Judge\u2019s order be reviewed by the Commissionpursuant to Section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651et. seq., 84 Stat. 1590, hereinafter referred to as \u2018the Act\u2019).We have reviewed the record, the Judge\u2019s order and the briefs filed by the parties. For thereasons given hereinafter we reverse and remand.The settlement agreement, in pertinent part, provides as follows:3. The parties in entering into this Settlement Agreement have done so with theintent and on the basis that it is determinative of and related solely to thedisposition of this case. The parties further agree that as to subsequent acts orevents this settlement and disposition in no way affects any rights or remedieswhich may be exercised in the future by either party pursuant to the OccupationalSafety and Health Act. It is further agreed that neither Respondent\u2019s action inentering into this Settlement, its abatement of the alleged violations, itswithdrawal of its Notice of Contest, or its payment of $125.00 shall be construedas an admission of fault or liability as to any claim or proceeding which exists ormay exist or may arise, and be pursued by any person, agency, or entity; furtherby entering into this stipulation and Settlement Agreement and by performing inaccordance with its terms, Respondent does not admit to any violation of theOccupational Safety and Health Act of 1970.\u00a04(e). Extent to which provisions were violated. Respondent does not admit that itviolated the provisions for which it was cited and disputes said violations in thecontest proceeding that is settled pursuant to this agreement.\u2019 (Emphasis added.)\u00a0In his decision Judge Cronin said that this agreement \u2018. . . is consistent with the provisions of theOccupational Safety and Health Act of 1970.\u2019 We cannot agree with the Judge\u2019s conclusion.We do not agree for the reason that the above-quoted language of the agreement createsdoubt as to whether the violations in this case may be used against Respondent in a possiblefuture proceeding before this Commission. This conclusion is fully supported by theComplainant\u2019s brief on review.\u00a0He therein points to the following language in paragraph 3:\u2018as to any subsequent acts or events this settlement and disposition in no wayaffects any rights or remedies which may be exercised in the future by eitherparty pursuant to the . . . Act.\u2019\u00a0And, he argues that the agreement should not be construed as barring him from using the citationand penalty notice of this case in a future proceeding, such as: a proceeding to prove a willful orrepeated violation (section 17(a)), a proceeding to prove a failure to abate (section 17(d)), or asevidence in a proceeding to establish a history of previous violations (section 17(j)).However, by arguing that the agreement should be construed in his favor Complainantadmits that it is ambiguous and might be construed against him. In this regard the followingwords (which also appear in paragraph 3):It is further agreed that neither Respondent\u2019s action in entering into thisSettlement, its abatement of the alleged violations, its withdrawal of its Notice ofContest, or its payment of $125.00 shall be construed as an admission of fault orliability as to any claim or proceeding which exists or may exist or may arise andbe pursued by any person, agency, or entity . . .\u00a0contradict the language relied upon. Certainly, Respondent can argue that \u2018agency\u2019 means theComplainant and a \u2018proceeding which .. . may exist or may arise\u2019 means a proceeding for willfulor repeated violation, a proceeding for failure to abate, or a proceeding where the presentviolation is evidentiary of prior history. This language alone creates doubt.In addition, by paragraph 4(e) Respondent goes beyond a simple failure to admitviolations. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote1 ); document.write( ‘Close’ ); document.write( ” ); } Respondent disputes the violations. This factor when added to the contradictorylanguage of paragraph 3 gives support to the conclusion that the agreement should be interpretedas not permitting use of the citation in a future proceeding.A settlement agreement which contains language which casts doubt concerning the futureusability of a citation should not be approved in that it is incompatible with the avowedlegislative purpose of the Act and therefore is not in the public interest (5 U.S.C. 554(c)). Wehave said that \u2018the principal purpose of this Act is to obtain compliance with its requirements inorder to ensure a safe and healthful workplace.\u2019 Secretary of Labor v. J. E. Chilton Millwork &Lumber Company, Inc., OSHRC Docket No. 123 (1972).Obviously, this goal cannot be achieved solely through utilization of the Act\u2019senforcement provisions. Practicality dictates that sufficient resources cannot be made availableto achieve total compliance by enforcement alone. Accordingly, the achievement of safe andhealthful workplaces and employments will in large measure depend on the extent to whichemployers and employees will voluntarily strive to achieve the goal.The objectionable provisions in the settlement agreement in this case do not promotevoluntary compliance. A recalcitrant employer if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote2 ); document.write( ‘Close’ ); document.write( ” ); } armed with the shield of such provisions mightwell place its confidence in its defenses rather than comply with the Act\u2019s requirements. Theresult in such case would frustrate achievement of the principal goal. Accordingly, it would becontrary to the public interest; we cannot approve an agreement containing provisions of thekind involved in this case.It should also be noted that Complainant\u2019s position in this case contradicts the positiontaken by him in Secretary of Labor v. California Blowpipe and Steel Co., Inc., OSHRC DocketNo. 1034. Respondent there submitted a motion to withdraw its notice of contest. The motioncontained exculpatory language in the nature of a refusal to admit liability. The motion wasopposed by the Regional Solicitor having overall responsibility for the present case for, interalia, the reason that an agreement containing such language was contrary to the purposes of theAct. Respondent California Blowpipe and Steel Co., Inc. thereafter submitted a second motion towithdraw. The second motion did not contain the language considered objectionable by theComplainant, and it was granted.A consistent result is required. Accordingly, the agreement presented for approval in thiscase would comport with our requirements for hospitable consideration if paragraphs 3 and 4(e)are deleted therefrom.It is therefore ORDERED that (1) the Judge\u2019s decision be and the same is hereby setaside; (2) the case be remanded; (3) the parties be given 10 days from the date of receipt of thisdecision to either conform the settlement agreement as indicated herein or indicate their intent toproceed to a hearing; and (4) the notice of contest be dismissed and the citation and proposedcivil penalties be affirmed in all respects in the event the parties do not comply with requirement(3) hereof.\u00a0[The Judge\u2019s decision referred to herein follows]\u00a0CRONIN, JUDGE, OSAHRC:A settlement agreement executed by the parties on September 18, 1972, was filed withthe undersigned on September 20, 1972 and it appears that said agreement complies with Section2200.100 of the Rules of Procedure of the Occupational Safety and Health Review Commission(29 C.F.R. 2200.100).Essentially, the Respondent agrees to the entry of a final order affirming the citationissued to Respondent on April 3, 1972, and assessing the proposed penalties based thereon,while denying its liability under the Occupational Safety and Health Act of 1970 (29 U.S.C. \u00a7651 et seq.).Respondent has represented that it has abated the conditions set forth in the citation ofApril 3, 1972; and will continue to comply with the safety standards designated therein; will paythe proposed penalties, and that it has fully conformed with the applicable posting and servicerequirements as required by the Commission rules.On the basis of the foregoing, and no objection having been received, the undersignedapproves the said settlement agreement, finding that such settlement is consistent with theprovisions and objectives of the Occupational Safety and Health Act of 1970.In accordance with the terms of said settlement agreement, it is ORDERED, that thecitation issued April 3, 1972 is hereby affirmed and the proposed penalties totaling $125.00 anddesignated in the Notification of Proposed Penalty, dated April 3, 1972, are hereby assessed.\u00a0There being no further contest in this case, it is further ORDERED, that the proceedings arehereby dismissed.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v. OSHRC DOCKET NO. 756MATT J. ZAICH CONSTRUCTION CO.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0December 3, 1973CRONIN, JUDGE, OSAHRC:A settlement agreement in this case was executed by the parties and filed by theComplainant on October 16, 1973, and it appears that said agreement complies with Section2200.100 of the Rules of Procedure of the Occupational Safety and Health Review Commission(29 C.F.R. 2200.100).Essentially, Respondent agrees to the entry of a final order affirming the Citation issuedto Respondent on April 3, 1972 and assessing the proposed penalties based thereon. The partiesagree that Respondent\u2019s consent to the entry of a final order pursuant to the SettlementAgreement shall not constitute an admission by Respondent of violations of the Act.Respondent has represented that it has abated the conditions set forth in the Citationissued to Respondent on April 3, 1972; that it will continue to comply with the safety standardsdesignated therein; and will pay the proposed penalties totalling $125.00.The record reflects that the Complainant has fully conformed with the applicable servicerequirements of the Commission\u2019s Rules of Procedure.On the basis of the foregoing, and no objection having been received, the undersignedapproves the said settlement agreement, finding that such settlement is consistent with theprovisions and objectives of the Occupational Safety and Health Act of 1970.In accordance with the terms of said Settlement Agreement, it is ORDERED that theCitation issued April 3, 1972 is hereby AFFIRMED, and the proposed penalties totalling$125.00 and designated in the Notification of Proposed Penalty, dated April 3, 1972, are herebyASSESSED.There being no further contest in this case, it is further ORDERED, that the proceedingsare hereby DISMISSED.”