“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?1155 OSHRC DOCKET NO. 78?1214 OSHRC DOCKET NO. 78?1409 MISSOURI FARMER?S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE, MFA, INC., D\/B\/A MFA GRAIN DIVISION, DESERT GOLD FEED COMPANY, RESPONDENTS, \u00a0 ?????????????????????????????????????? ???????Respondent. \u00a0 August 22, 1980DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Theseconsolidated cases are before the Commission pursuant to Commission Rule 75[1] as a result of thecertification by Administrative Law Judge David H. Harris of the parties? jointmotion for Interlocutory Appeal.[2]??????????? Ineach of these cases the parties submitted a jointly executed Stipulation forWithdrawal of Notice of Contest (?settlement agreement?) to the judge. Basedupon exculpatory language in each of the settlement agreements,[3] the judge concluded thatthey did ?not comport with Review Commission policy.? He therefore disapprovedeach settlement agreement, citing the Commission decisions in Matt J. ZaichConstruction Co., 73 OSAHRC 55\/D5, 1 BNA OSHC 1225, 1971?73 CCH OSHD?15,683 (No. 756, 1973); Greenfield & Associates, 73 OSAHRC 28\/A2, 1BNA OSHC 1245, 1971?73 CCH OSHD ?16,269 (No. 798, 1973); and BlaisdellManufacturing, Inc., 73 OSAHRC 53\/B8, 1 BNA OSHC 1406, 1973?74 CCH OSHD ?16,915 (No. 1566, 1973).??????????? Sincethe issuance of the judge?s decision in this case, the Commission has held thatsettlement agreements which meet the requirements set out in DawsonBrothers-Mechanical Contractors, 72 OSAHRC 5\/B8, 1 BNA OSHC 1024, 1971?73CCH OSHD ?15,039 (No. 12, 1972) as adopted by Commission Rule 100,[4] will be approved by theCommission even if they contain exculpatory language. Farmer?s Export Co.,80 OSAHRC ??, 8 BNA OSHC 1655, 1980 CCH OSHD ?24,569 (No. 78?1708, 1980). Tothe extent that Zaich, Greenfield, and Blaisdell were inconsistent with Farmer?sExport they were overruled.??????????? CommissionRule 100, which essentially codifies the criteria set forth in DawsonBrothers-Mechanical Contractors, supra, provides, in pertinent part, asfollows:? Rule 100 Settlement.?(b) Requirements. Every settlementproposal submitted to the Judge or Commission shall include, where applicable,the following:?(1) A motion to amend or withdraw acitation, notification of proposed penalty, notice of contest, or petition formodification of abatement;?(2) A statement that payment of thepenalty has been tendered or a statement of a promise to pay; and?(3) A statement that the cited conditionhas been abated or a statement of the date by which abatement will beaccomplished.?(c) Filing; service and notice. When asettlement proposal is filed with the Judge or Commission, it shall also beserved upon represented and unrepresented affected employees in the mannerprescribed for notices of contest in ? 2200.7. Proof of service shall accompanythe settlement proposal. A settlement proposal shall not be approved until atleast 10 days following service of the settlement proposal on affectedemployees.???????????? The settlementagreements in these cases comply with the criteria set forth in Commission Rule100. Each of the agreements includes a motion by Respondent to withdraw itsnotice of contest. Payment of the amended penalties has been tendered in DocketNos. 78?1155 and 78?1214. There is a promise to pay the penalty in Docket No.78?1409. Desert Gold Feed Co. (Docket No. 78?1409) has certified that it is nowin compliance. A specific abatement date has been established in Docket Nos.78?1155 and 78?1214. Proof of service accompanies each settlement proposal andmore than 10 days has elapsed since each settlement proposal was posted atRespondents? premises. Moreover, these agreements are not clearly repugnant tothe Act?s objectives and provisions.??????????? Accordingly,the judge?s decision is vacated and the settlement agreements are approved.?SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: AUG 22, 1980?COTTINE, Commissioner, concurring:??????????? Theexculpatory provisions contained in the settlement agreements before us do notattempt to preclude or limit the use of the affirmed violations in futureproceedings before the Commission.[5] Accordingly, for thereasons set forth in Part I of my separate opinion in Farmer?s Export Co.,80 OSAHRC ___, 8 BNA OSHC 1655, 1980 CCH OSHD ?24,569 (No. 78?1708, 1980), Iconcur in vacating the judge?s order before us.??????????? Ialso join my colleagues in approving the agreements filed by the parties. Theagreements comply with the requirements set forth in Dawson Brothers,Mechanical Contractors, 72 OSAHRC 5\/B8, 1 BNA OSHC 1024, 1971?73 CCH OSHD ?15,039 (No. 12, 1972) and Commission Rule 100, 29 C.F.R. ? 2200.100. Inaddition, the record reveals that the judge considered all provisions of theagreements and found only the exculpatory provisions unacceptable.[6] On the record before us itis appropriate to conclude that the agreements are consistent with theprovisions and objective of the Act and should be approved.[7]\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?1155 OSHRC DOCKET NO. 78?1214 OSHRC DOCKET NO. 78?1409 MISSOURI FARMER?S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE, MFA, INC., D\/B\/A MFA GRAIN DIVISION, DESERT GOLD FEED COMPANY, RESPONDENTS, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0ORDER??????????? Itappearing that the Compromise Settlement Agreement submitted by the partiesherein does not comport with Review Commission policy, cf., Matt J. ZaichConstruction Company, Docket No. 0756 (April 17, 1973); Greenfield &Associates, Docket No. 0798 (July 17, 1973) and Blaisdell Manufacturing, Inc.,Docket No. 1566 (November 14, 1973), it is??????????? ORDEREDthat the said Compromise Settlement Agreement be and the same is herebydisapproved.?DAVID H. HARRISJUDGE, OSHRCDated: November 21, 1978?New York, New York[1] 29 C.F.R. ?2200.75. This rule has since been amended. See 44 Fed. Reg. 70,106, 70,111(1979).[2] On December 19,1978, the Commission ordered these proceedings stayed pending the dispositionof the interlocutory appeal.[3] In Docket Nos.78?1155 and 78?1214 the settlement agreements provide, among other things, thateach Respondent ?neither admits or denies any violation.? The settlement inDocket No. 78?1409 provides that Respondent does not admit any violation of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651?678. Thesettlement in Docket No. 78?1429 further provides that Respondent?s withdrawalof its notice of contest will not have any effect ?in any action other than anaction or proceedings specifically under the Occupational Safety and HealthAct.?[4] 29 C.F.R. ?2200.100. This rule was revised by the Commission on December 5, 1979. 44 Fed.Reg. 70,106, 70,112 (1979).[5] The agreement in DesertGold, OSHRC Docket No. 78?1409, provides, in pertinent part, the following:Nothing contained herein shall be deemedan admission by respondent of a violation of the Occupational Safety and HealthAct or any regulation or standard issued pursuant thereto. Nor does thiswithdrawal have any effect whatsoever in any action other than an action orproceeding specifically under the Occupational Safety and Health Act.[emphasis added.]Theparties have agreed to the following language in Missouri Farmer?s Association,Inc., OSHRC Docket No. 78?1155 and MFA, Inc., OSHRC Docket No. 78?1214:Nothing in this Stipulation is to be takenas an admission for the purpose of any proceeding other than one before theOccupational Safety and Health Review Commission, it being understood thatRespondent neither admits nor denies violations of the act and this Stipulationis made in order to prevent further litigation and expense to both thegovernment and the Respondent and in order to insure compliance with the act.[emphasis added.][6] In a letter datedAugust 28, 1978, the judge informed the parties that he would approve theagreements if the exculpatory language was changed.[7] I do not join inmy colleagues? criteria for approval??these agreements are not clearlyrepugnant to the Act?s objectives and provisions??because the test is contraryto Commission precedent, see American Cyanamid Company, 80 OSAHRC ____,8 BNA OSHC 1346, 1980 CCH OSHD ?24,424 (No. 77?3752, 1980); Kaiser Aluminum& Chemical Corp., 78 OSAHRC 103\/E8, 6 BNA OSHC 2172, 1978 CCH OSHD ?23,200 (No. 76?2293, 1978), appeal dismissed, No. 79?7047 (9th Cir. Feb.7, 1980); American Airlines, 75 OSAHRC 43\/F3, 2 BNA OSHC 1391, 1974?75CCH OSHD ? 19,393 (No. 6087, 1974), and to Commission Rule 100 that isselectively quoted in the majority opinion. The rule states:(a) Policy . . .. A settlement proposalshall be approved when it is consistent with the provisions and objectives ofthe Act.29C.F.R. ? 2200.100(a). See also my separate opinion in GAF Corporation,OSHRC Docket Nos. 78?0867 & 78?1399 (Aug. 22, 1980).”