“Docket No. 90-0832 SECRETARY OF LABOR,Complaint,v.METAL GOODS SERVICE CENTERS,DIV. OF ALCAN ALUMINUM CORP.,Respondent.OSHRC DOCKET NO. 90-0832ORDER OF REMANDBefore: FOULKE, Chairman; MONYOYA and WISEMAN, Commissioners.BY THE COMMISSION:On August 28, 1990, Administrative Law Judge Stanley M.Schwartz approved a settlement agreement between the parties.\u00a0 Due to an error in thesettlement agreement, Judge Schwartz’s approval was premature.\u00a0 Affected employeeshad not been given 10 days’ notice of the settlement.\u00a0 The case must therefore beremanded to ensure that the rights of affected employees are preserved.\u00a0 E.g.,General Electric Co., 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:\u00a0\u00a0\u00a0 January 11, 1991SECRETARY OF LABOR,Complaint,v.METAL GOODS,Respondent.OSHRC DOCKET NO. 90-0832ORDERSCHWARTZ, Judge:The parties have submitted a settlement agreement pursuant toRule 100 of the Rules of Procedure.\u00a0 The agreement meets the requirements of theCommission for hospitable consideration of settlements.\u00a0 No objection has beenreceived from affected employees.\u00a0 The settlement agreement is approved andincorporated herein by reference.So ORDERED.STANLEY M. SCHWARTZAdministrative Law JudgeDate:\u00a0\u00a0\u00a0 August 28, 1990\u00a0SECRETARY OF LABORComplainant,v.METAL GOODS,Respondent.OSHRC DOCKET NO. 90-0832APPEARANCES: Jamison Ann Milford, Esquire Kansas City, MissouriFor the Complainant.Julie A. Emmerich, Esquire St. Louis, MissouriFor the Respondent. DECISION AND ORDERSCHWARTZ, Judge:This case is on remand from the Occupational Safety and HealthReview Commission (\”the Commission\”) pursuant to ? 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651 et seq. (\”the Act\”). The purposeof the remand is to ensure that, prior to approving the settlement agreement submitted bythe parties, the rights of affected employees have been preserved.The Secretary and the Respondent have submitted an AmendedStipulation and Settlement Agreement, which is incorporated herein by reference as\”Attachment A.\” The agreement was served on all parties and on the authorizedemployee representative, and was also posted at Respondent’s workplace on April 3,1991.[[1]] Pursuant to the agreement, the Secretary amended the citation from a serious toa nonserious violation, and Respondent withdrew its notice of contest. One of Respondent’semployees, Richard Roberts, objected to the amendment in a letter to the Commission, whichis included in Attachment A. In view of Roberts’ objection, the issue to be determined iswhether approval of the agreement is consistent with Commission precedent regarding therights of affected employees.Affected employees or their representatives have the right toparticipate in settlement negotiations. See Boise Cascade Corp., 14 BNA 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 OSHC 1763, 1990 CCH OSHD ? 29,072 (No.88-2265, 1990). However, as prosecutorial discretion in the enforcement of the Act isvested solely in the Secretary, the Commission and employees have only limited roles inthe settlement process. Id. Consequently, as long as employee input has beenconsidered, the Secretary may arrive at an agreement with the employer notwithstanding thecontrary views of employees, and the sole objection employees may make to a settlementagreement before the Commission is in regard to the reasonableness of the abatementperiod. Id.In this case, the settlement was served on the authorized employee representative andposted at the workplace as required by the Commission’s Rules of Procedure. The onlyobjection of record to the settlement was that of Roberts. The agreement, at page 2, item3, notes his objection as follows:[T]he parties have received, reviewed and considered the letter and attachments fromrespondent’s employee Richard D. Roberts (copy attached) wherein Mr. Roberts objects tothat part of this settlement wherein the Secretary modifies item 1 of serious citationnumber 1 to an other than serious citation.Since the Secretary considered Roberts’ objection, she has doneall that the Act requires in regard to his participation in the settlement process. Thefact that she reached a settlement in spite of the objection is no basis for rejecting theagreement. I have also considered the nature of Roberts’ objection concerning thereduction of the classification from serious to nonserious. The Commission’s jurisdiction,as noted above, is limited to reviewing objections from employees or their representativesonly with respect to reasonableness of the abatement period. Such is not the case here, asthe agreement states that the condition has been abated and there is no claim to thecontrary.It is found that the Amended Stipulation and SettlementAgreement submitted by the parties meets the requirements of the Commission for hospitableconsideration of settlements. Accordingly, the settlement agreement is approved. SoORDERED.STANLEY M. SCHWARTZAdministrative Law JudgeDATE: MAY 28 1991SECRETARY OF LABOR,UNITED STATES DEPARTMENT OF LABOR,Complainant,v.METAL GOODS SERVICE CENTERSA DIVISION OF ALCAN ALUMINUM CORP.,Respondent. OSHRC DOCKETNO. 90-0832AMENDED STIPULATION AND SETTLEMENT AGREEMENTThe Secretary of Labor, United States Department of Labor, hereinafter referred 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 Secretaryhereby modifies item 1 of serious citation number 1 by changing said citation to an otherthan serious violation of section 1910.252(D)(2)(vi)(c) with a $200.00 penalty. Thecitation is amended accordingly.2. Respondent hereby withdraws its notice of contest to thecitation and notification 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 at the time ofexecution of the agreement, the matter of unreasonableness of abatement is not at issue.(b) That a copy of this stipulation and settlement agreementwas posted at respondent’s workplace on April 1, 1991, at 8800 Page Boulevard, St.Louis, Missouri where it may be viewed by its employees; that affected employees arerepresented by Teamsters Local 688; and, that a copy of this stipulation and settlementagreement has been served on Teamsters Local 688, 300 South Grand, St. Louis, Missouri63103 by prepaid, first class mail this 26th day of March 1991.(c) That it has tendered payment of the total penalty of$200.00 to the Secretary’s representative.3. That the parties have received, reviewed and considered theletter and attachments from respondent’s employee Richard D. Roberts (copy attached)wherein Mr. Roberts objects to that part of this settlement wherein, the Secretarymodifies item 1 of serious citation number 1 to an other than serious citation.4. Respondent takes the position that for purposes of actionsother than actions or proceedings under the provisions of the occupational Safety andHealth Act of 1970 (hereinafter OSHA), nothing contained herein shall be deemed anadmission by respondent that respondent violated the Act or its regulations or standards.The parties further agree that this Stipulation and Settlement Agreement will not be usedby either party as evidence in any action other than actions or proceedings under OSHA.5. The secretary and respondent agree that based on theforegoing representations of respondent, an order may be entered of record showing thatrespondent has withdrawn its notice of contest and entering the citation and notificationof proposed penalty, as amended herein, as a final order of the Commission.6. Further, each party hereby agrees to bear her or its ownfees and other expenses incurred by such party in connection with any stage of thisproceeding. 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 LaborNOTICE TO EMPLOYEES OR EMPLOYEE REPRESENTATIVEThe attached stipulation and settlement agreement has beenexecuted by the parties hereto, and has been submitted to the Occupational Safety andHealth Review Commission for entry as a final order. If you have any comments on thestipulation and settlement agreement, you may submit them within ten days of service orposting of the stipulation to:Judge Stanley M. Schwartz Occupational 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, 1991DELIVERED VIA FACSIMILE #(214) 767-0350Judge Stanley M. SchwartzOccupation Safety and Health CommissionRE: Secretary of Labor v. Metal Goods\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 OSHRC Docket No. 90-0832Dear Judge Schwartz:This will confirm our telephone conversation of this date,wherein I stated to you that the Amended Stipulation and Settlement Agreement, which theparties filed on or about March 27, 1991, had not been posted for the employees on April1, 1991 as the Agreement had indicated. George Giltinan, the Safety Director for MetalGoods and addressee of the Agreement, was on vacation until April 3, 1991 and did notreceive the Agreement in time to post it by April 1st. I failed to confirm with him thathe or someone else would be present to receive and post the Agreement.Based on these facts, you indicated that we could rectify thesituation by stating to you by letter that the Agreement will now be posted on April 3,1991, and that April 3rd would be used for purposes of computing the time for employeeobjections to the Agreement.I have forwarded a copy of this letter to Metal Goods forposting along with the Amended Stipulation and Settlement Agreement. In addition, I haveforwarded copies to Jamie Milford, Attorney for the Department of Labor, and the TeamstersLocal 688. If you require additional information, please do not hesitate to call.Sincerely yours,Julie A. EmmerichJudge Stanley M. SchwartzOccupational Safety and Health CommissionApril 3, 1991cc: Jamie MilfordU.S. Department of Labor Office 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 hasbeen mailed to the parties whose names and addresses appear on this notice, by first classmail.Regional Solicitor:Jamison Ann Milford, Esq. Office of the Solicitor U. S. Department of LaborAuthorized Employee Representative:Daniel J. Mick, Esq.Counsel for Regional Trial LitigationOffice of the Solicitor, USDOLFOOTNOTES: [[1]] Although the agreement states that it was posted at the workplace on April 1, 1991,a letter from Respondent’s attorney, incorporated herein by reference as \”AttachmentB,\” explains that the agreement was not actually posted until April 3, 1991.”