“SECRETARY OF LABOR,Complaint,v.METAL GOODS SERVICE CENTERS,DIV. OF ALCAN ALUMINUM CORP.,Respondent.OSHRC DOCKET NO. 90-0832_ORDER OF REMAND_Before: FOULKE, Chairman; MONYOYA and WISEMAN, Commissioners.BY THE COMMISSION:On August 28, 1990, Administrative Law Judge Stanley M. Schwartzapproved a settlement agreement between the parties. Due to an error inthe settlement agreement, Judge Schwartz’s approval was premature. Affected employees had not been given 10 days’ notice of thesettlement. The case must therefore be remanded to ensure that therights of affected employees are preserved. _E.g., General ElectricCo.,_ 14 BNA OSHC 1763, 1990 CCH OSHD ? 29,072 (No. 88-2265, 1990).Therefore, this case is remanded to Judge Schwartz for furtherproceedings consistent with Commission precedent on the issue.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated:_ January 11, 1991_————————————————————————SECRETARY OF LABOR,Complaint,v.METAL GOODS,Respondent.OSHRC DOCKET NO. 90-0832_ORDER_SCHWARTZ, Judge:The parties have submitted a settlement agreement pursuant to Rule 100of the Rules of Procedure. The agreement meets the requirements of theCommission for hospitable consideration of settlements. No objectionhas been received from affected employees. The settlement agreement isapproved and incorporated herein by reference.So ORDERED.STANLEY M. SCHWARTZAdministrative Law JudgeDate: August 28, 1990 ————————————————————————SECRETARY OF LABORComplainant,v.METAL GOODS,Respondent.OSHRC DOCKET NO. 90-0832APPEARANCES: Jamison Ann Milford, EsquireKansas City, MissouriFor the Complainant.Julie A. Emmerich, EsquireSt. Louis, MissouriFor the Respondent._DECISION AND ORDER_SCHWARTZ, Judge:This case is on remand from the Occupational Safety and Health ReviewCommission (\”the Commission\”) pursuant to ? 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651 et seq. (\”the Act\”). Thepurpose of the remand is to ensure that, prior to approving thesettlement agreement submitted by the parties, the rights of affectedemployees have been preserved.The Secretary and the Respondent have submitted an Amended Stipulationand Settlement Agreement, which is incorporated herein by reference as\”Attachment A.\” The agreement was served on all parties and on theauthorized employee representative, and was also posted at Respondent’sworkplace on April 3, 1991.[[1]] Pursuant to the agreement, theSecretary amended the citation from a serious to a nonserious violation,and Respondent withdrew its notice of contest. One of Respondent’semployees, Richard Roberts, objected to the amendment in a letter to theCommission, which is included in Attachment A. In view of Roberts’objection, the issue to be determined is whether approval of theagreement is consistent with Commission precedent regarding the rightsof affected employees.Affected employees or their representatives have the right toparticipate in settlement negotiations. _See Boise Cascade Corp., _14BNA OSHC 1993, 1991 CCH OSHD ? 29,222 (Nos. 89-3087 and 89-3088, 1991);_National Steel & Shipbuilding Co.,_ 14 BNA OSHC 1866, 1990 CCH OSHD ?29,127 (Nos. 88-227 et al., 1990);_General Electric Co.,_ 14 BNA OSHC1763, 1990 CCH OSHD ? 29,072 (No. 88-2265, 1990). However, asprosecutorial discretion in the enforcement of the Act is vested solelyin the Secretary, the Commission and employees have only limited rolesin the settlement process. _Id. _Consequently, as long as employee inputhas been considered, the Secretary may arrive at an agreement with theemployer notwithstanding the contrary views of employees, and the soleobjection employees may make to a settlement agreement before theCommission is in regard to the reasonableness of the abatement period._Id._In this case, the settlement was served on the authorized employeerepresentative and posted at the workplace as required by theCommission’s Rules of Procedure. The only objection of record to thesettlement was that of Roberts. The agreement, at page 2, item 3, noteshis objection as follows:[T]he parties have received, reviewed and considered the letter andattachments from respondent’s employee Richard D. Roberts (copyattached) wherein Mr. Roberts objects to that part of this settlementwherein the Secretary modifies item 1 of serious citation number 1 to another than serious citation.Since the Secretary considered Roberts’ objection, she has done all thatthe Act requires in regard to his participation in the settlementprocess. The fact that she reached a settlement in spite of theobjection is no basis for rejecting the agreement. I have alsoconsidered the nature of Roberts’ objection concerning the reduction ofthe classification from serious to nonserious. The Commission’sjurisdiction, as noted above, is limited to reviewing objections fromemployees or their representatives only with respect to reasonablenessof the abatement period. Such is not the case here, as the agreementstates that the condition has been abated and there is no claim to thecontrary.It is found that the Amended Stipulation and Settlement Agreementsubmitted by the parties meets the requirements of the Commission forhospitable consideration of settlements. Accordingly, the settlementagreement is approved. So ORDERED.STANLEY M. SCHWARTZAdministrative Law JudgeDATE: MAY 28 1991————————————————————————SECRETARY OF LABOR,UNITED STATES DEPARTMENT OF LABOR,Complainant,v.METAL GOODS SERVICE CENTERSA DIVISION OF ALCAN ALUMINUM CORP.,Respondent.OSHRC DOCKETNO. 90-0832_AMENDED STIPULATION AND SETTLEMENT AGREEMENT_The Secretary of Labor, United States Department of Labor, hereinafterreferred to as the \”Secretary,\” and Metal Goods Service Centers,hereinafter referred to as the \”respondent,\” stipulate and agree as follows:1. (a) Based upon a reevaluation of the evidence, the Secretary herebymodifies item 1 of serious citation number 1 by changing said citationto an other than serious violation of section 1910.252(D)(2)(vi)(c) witha $200.00 penalty. The citation is amended accordingly.2. Respondent hereby withdraws its notice of contest to the citation andnotification of proposed penalty, as amended herein. In support of itswithdrawal, respondent states:(a) That the abatement of item 1 of citation number 1 has beenaccomplished. There being no cited conditions which remain unabated atthe time of execution of the agreement, the matter of unreasonablenessof abatement is not at issue.(b) That a copy of this stipulation and settlement agreement was postedat respondent’s workplace on _April 1, 1991,_ at 8800 Page Boulevard,St. Louis, Missouri where it may be viewed by its employees; thataffected employees are represented by Teamsters Local 688; and, that acopy of this stipulation and settlement agreement has been served onTeamsters Local 688, 300 South Grand, St. Louis, Missouri 63103 byprepaid, first class mail this _26th_ day of _March _1991.(c) That it has tendered payment of the total penalty of $200.00 to theSecretary’s representative.3. That the parties have received, reviewed and considered the letterand attachments from respondent’s employee Richard D. Roberts (copyattached) wherein Mr. Roberts objects to that part of this settlementwherein, the Secretary modifies item 1 of serious citation number 1 toan other than serious citation.4. Respondent takes the position that for purposes of actions other thanactions or proceedings under the provisions of the occupational Safetyand Health Act of 1970 (hereinafter OSHA), nothing contained hereinshall be deemed an admission by respondent that respondent violated theAct or its regulations or standards. The parties further agree that thisStipulation and Settlement Agreement will not be used by either party asevidence in any action other than actions or proceedings under OSHA.5. The secretary and respondent agree that based on the foregoingrepresentations of respondent, an order may be entered of record showingthat respondent has withdrawn its notice of contest and entering thecitation and notification of proposed penalty, as amended herein, as afinal order of the Commission.6. Further, each party hereby agrees to bear her or its own fees andother expenses incurred by such party in connection with any stage ofthis proceeding. Dated this _26th _day of _March,_ 1991.Robert P. DavisSolicitor of LaborMETAL GOODS SERVICE CENTERSA Division of Alcan AluminumCorporationTedrick A. Housh, Jr.Regional SolicitorJulie A. EmmerichFrank L. Pelligrini, P.C.Attorneys for RespondentJamison Ann Milford AttorneyAttorneys for Secretary of Labor,U.S. Department of Labor_NOTICE TO EMPLOYEES OR EMPLOYEE REPRESENTATIVE_The attached stipulation and settlement agreement has been executed bythe parties hereto, and has been submitted to the Occupational Safetyand Health Review Commission for entry as a final order. If you have anycomments on the stipulation and settlement agreement, you may submitthem within ten days of service or posting of the stipulation to:Judge Stanley M. SchwartzOccupational Safety and HealthReview CommissionA copy of such comments should also be sent to:Tedrick A. Housh, Jr.Regional SolicitorU.S. Department of LaborServed and\/or posted this _1st_ day of _March,_ 1991.————————————————————————April 3, 1991_DELIVERED VIA FACSIMILE #(214) 767-0350_Judge Stanley M. SchwartzOccupation Safety and Health CommissionRE: Secretary of Labor v. Metal Goods OSHRC Docket No. 90-0832Dear Judge Schwartz:This will confirm our telephone conversation of this date, wherein Istated to you that the Amended Stipulation and Settlement Agreement,which the parties filed on or about March 27, 1991, had not been postedfor the employees on April 1, 1991 as the Agreement had indicated.George Giltinan, the Safety Director for Metal Goods and addressee ofthe Agreement, was on vacation until April 3, 1991 and did not receivethe Agreement in time to post it by April 1st. I failed to confirm withhim that he or someone else would be present to receive and post theAgreement.Based on these facts, you indicated that we could rectify the situationby stating to you by letter that the Agreement will now be posted onApril 3, 1991, and that April 3rd would be used for purposes ofcomputing the time for employee objections to the Agreement.I have forwarded a copy of this letter to Metal Goods for posting alongwith the Amended Stipulation and Settlement Agreement. In addition, Ihave forwarded copies to Jamie Milford, Attorney for the Department ofLabor, and the Teamsters Local 688. If you require additionalinformation, please do not hesitate to call.Sincerely yours,Julie A. EmmerichJudge Stanley M. SchwartzOccupational Safety and Health Commission————————————————————————April 3, 1991cc: Jamie MilfordU.S. Department of LaborOffice of the SolicitorTeamsters Local 688George GiltinanDivision Safety CoordinatorCase Name: Metal GoodsOSHRC Docket No.: 90-0832Employer:Julie A. Emmerich, Esq.Frank L. PellegriniI hereby certify that a copy of the decision in this case has beenmailed to the parties whose names and addresses appear on this notice,by first class mail.Regional Solicitor:Jamison Ann Milford, Esq.Office of the SolicitorU. S. Department of LaborAuthorized Employee Representative:Daniel J. Mick, Esq.Counsel for Regional Trial LitigationOffice of the Solicitor, USDOL————————————————————————FOOTNOTES:[[1]] Although the agreement states that it was posted at the workplaceon April 1, 1991, a letter from Respondent’s attorney, incorporatedherein by reference as \”Attachment B,\” explains that the agreement wasnot actually posted until April 3, 1991.”