“SECRETARY OF LABOR,Complainant,v.NATIONAL STEEL AND SHIPBUILDING COMPANY,Respondent.INTERNATIONAL ASSOCIATION OF BRIDGE,STRUCTURAL AND ORNAMENTAL IRON WORKERS,SHOPMEN’S LOCAL 627,INTERNATIONAL ASSOCIATION OF MACHINISTSAND AEROSPACE WORKERS, LOCAL 389,_et al.,_Authorized EmployeeRepresentatives.OSHRC DocketNos. 88-0227, 88-0731, and88-1647_DECISION AND ORDER_BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:These cases arose from three inspections conducted at a worksite ofRespondent, National Steel and Shipbuilding Company (\”NASSCO\”), in SanDiego, California, between July 1987 and June 1988. The Secretary’sOccupational Safety and Health Administration (\”OSHA\”) issued a total ofeight citations, setting forth 20 separate allegations that NASSCOwillfully violated the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-78 (\”the Act\”), over 300 allegations that NASSCO committedserious violations of the Act, and approximately 160 allegations ofnonserious violations. OSHA proposed penalties totaling $165,100. NASSCOcontested all of the willful allegations as well as many of the seriousand nonserious charges. The unions representing NASSCO’s employees thenelected party status pursuant to Commission Rule 20(a), 29 C.F.R. ?2200.20(a), which provides that affected employees and their authorizedrepresentatives may make such an election at least 10 days prior to thehearing.[[1\/]]Thereafter, the cases were assigned to two Administrative Law Judges fordisposition. Docket number 88-0227 was assigned to Judge James A.Cronin, Jr., and the remaining two cases were assigned to Judge BenjaminR. Loye. The Secretary and NASSCO then entered into a single settlementagreement disposing of all three cases, and Judges Cronin and Loyeissued orders approving the settlement agreement as it pertained totheir respective cases. Two of the unions which had elected partystatus, Shopmen’s Local 627 of the International Association of Bridge,Structural, and Ornamental Iron Workers (\”Ironworkers\”) and Local 389 ofthe International Association of Machinists and Aerospace Workers(\”Machinists\”) then filed petitions for discretionary review objectingto the approval of the settlement agreement. Former Commissioner LindaL. Arey directed review on the issue of whether the judges’ ordersshould be set aside in light of the unions’ objections.Since these cases raise a common legal issue and involve identicalparties, we formally consolidate them pursuant to Commission Rule 9, 29C.F.R. ? 2200.9. For the reasons that follow, we conclude that thejudges erred in approving the settlement agreement.The Machinists union objects that it was not served with a copy of thesettlement agreement. It points out that it was not listed on thecertificate of service despite the representation in the agreement that\”Complainant has served a copy of this Settlement Agreement upon theauthorized representatives of employees that have elected partystatus….\” Commission Rule 100(c), 29 C.F.R. ? 2200.100(c), imposes amandatory requirement that a settlement agreement be served \”upon allparties and authorized employee representatives\” and that proof ofservice to that effect \”shall be filed with the settlement agreement.\”We recently reaffirmed the importance of the service requirement in_General Electric Co.,_ 14 BNA OSHC 1763, 1990 CCH OSHD ? 29,072 (No.88-2265, 1990), where we emphasized that Rule 100(c) is intended toallow employees or their representatives who have elected, or who stillhave the opportunity to elect, party status an opportunity to make knowntheir objections to the reasonableness of any abatement time providedfor in the settlement agreement before the agreement is approved. Wefurther pointed out that Rule 100(c) also is intended to ensure that_all_ employee representatives have notice of the terms of a settlementagreement whether or not they have elected party status._Id._, 14 BNAOSHC at 1764-65 & n.2, 1990 CCH OSHD at p. 38,849 & n.2. Accordingly,the settlement agreement is deficient for failure to certify service onthe Machinists, and the judges erred in approving the agreement withoutassurance that the Machinists had been served as required by Rule100(c). [[2\/]]In addition to the procedural question of service on the Machinists,both the Machinists and the Ironworkers raise essentially the samesubstantive objections to the settlement agreement. Both unions assertthat the agreement contains a material misstatement of fact regardingthe cause of an accident that resulted in the inspection at issue indocket number 88-1647. According to the unions, the representation inthe agreement that NASSCO’s rigging practices were not responsible forthis accident is contrary to an investigative report prepared for theSecretary by an outside expert. Both unions also object to provisions ofthe agreement that allow NASSCO to offset a portion of the penaltiesoriginally proposed by making certain expenditures for improving safetyat the worksite. They contend that some of the expenditures approved bythe agreement as a credit against the penalties are for employee safetyinstruction and training already required either by union contracts withNASSCO or by other OSHA standards. In the unions, view, funds to beexpended under the settlement agreement should be used for new oradditional safety measures \”beyond the minimum requirements of law\” andnot merely for \”normal operating costs like the training of newly-hiredemployees.\” The Ironworkers union also opposes a provision of theagreement giving NASSCO credit for expenditures made before thesettlement agreement was signed, contending that this provision defeatsthe deterrent value of penalties. Finally, the Ironworkers union objectsthat it and the other authorized employee representatives were \”excludedfrom the settlement process\” and that the settlement agreement wasnegotiated without their \”participation or knowledge.\”The objections raised by the Machinists and the Ironworkers to thestatements in the settlement agreement regarding the cause of theaccident in docket number 88-1647 and to the provisions of the agreementregarding offset of penalties do not relate to the reasonableness of thetime prescribed for abatement and therefore are beyond the purview ofthe Commission or Commission judge. [[3\/]]However, the unions may make these concerns known to the Secretary andNASSCO in the manner indicated by our recent decision in_General Electric._In _General Electric_ we reconsidered our past precedents accordingemployees or their representatives \”meaningful participation\” in thesettlement process in light of the limited opportunity employees have tomake objections to the Commission or judge regarding the terms of asettlement agreement. We concluded that employees or theirrepresentatives who have elected party status should be permitted toprovide input regarding a settlement agreement to the other partiesbefore the agreement is fully executed and filed with the Commission orjudge. This opportunity is in addition to the right provided byCommission Rule 100(c) to have 10 days to object to the reasonablenessof the abatement period(s) contained in a settlement agreement before itis approved by the judge. We further stated that when a settlementagreement is submitted for approval by the Commission or judge, it is tobe examined to ensure that the employees or their representatives havehad an opportunity to provide input before the other parties havefinalized the agreement.In these cases, as in _General Electric,_ there is no evidentiary recordfrom which we can determine whether the authorized employeerepresentatives were \”excluded from the settlement process,\” as theIronworkers union alleges. Consistent with _General Electric,_ thejudges’ orders approving the settlement agreement are therefore setaside. These cases are remanded to the judge for development of afactual record through a hearing, affidavits, or other appropriate meansand for factual findings, based on that record, as to whether theauthorized employee representatives did have the opportunity to provideinput. In the event it is determined that the employee representativeswere not afforded that opportunity, they shall be permitted to provideinput for consideration by the other parties before any settlementagreement is executed between the Secretary and NASSCO, as required by_General Electric._Since these three cases are interrelated and the unions raise the sameconcerns with respect to all three, we think it appropriate for thecases to remain consolidated. We therefore direct that docket number88-0227 be reassigned to Judge Loye and that all three docket numbers beremanded to Judge Loye for further proceedings in accordance with thisopinion.Should Judge Loye determine that the authorized employee representativesdid in fact have an opportunity to provide their input in accordancewith _General Electric, _NASSCO and the Secretary are free to refiletheir original settlement agreement. However, we note two apparentdiscrepancies in that agreement. It states that an aggregate penalty of$24,200 is due in docket number 88-0731. However, the total of theindividual penalties assessed for the citation items affirmed in thatdocket number comes to $24,500. In addition, the agreement fails todispose of subitem 53(i) of citation number 1 in docket number 88-0731.The Secretary and NASSCO may make appropriate corrections to the penaltyamounts and disposition of the citation items in any settlementagreement executed under the terms of this decision.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: October 25, 1990FOOTNOTES:[[1\/]] The record reflects that NASSCO’s employees are represented byunions for seven trades: carpenters, painters, machinists, iron workers,teamsters, electrical workers, and operating engineers. Specificelections of party status were received from the InternationalAssociation of Bridge, Structural , and Ornamental Iron Workers; Theinternational Association of machinists and Aerospace Workers; theUnited Brotherhood of Carpenters and Joiners of America; and theInternational Union of operating Engineers. In addition, twoindividuals, each of whom identified himself as a \”full-time unionhealth and safety representative\” for NASSCO, stated that they electedparty status on behalf of \”all seven unions which have members employedat [NASSCO].\”[[2\/]] As we emphasized in another recent decision addressing the rightsof employees, _General Motors Corp., Delco Electronics Div.,_ 14 BNAOSHC 1753, 1990 CCH OSHD ? 29,069 (No. 88-1112, 1990), Rule 100(c)provides that employees and their representatives who have elected partystatus or whose time for electing party status has not expired shall begranted a period of at least 10 days after service of a copy theexecuted settlement agreement to make known their objections to thereasonableness of the time for abatement provided for in the settlementagreement. The Machinists union did not receive a copy of the settlementagreement until June 7, 1989, after it had asked the OSHA area officeabout the status of these cases. Judge Cronin issued his order approvingthe agreement on June 2, and Judge Loye’s order was entered on June 8.Therefore, the union was not accorded the 10-day consideration periodprescribed by Rule 100(c).[[3\/]] Commission Rule 100(b), 29 C.F.R. ? 2200.100(b), which sets forththe provisions that must appear in a settlement agreement, requires thata settlement agreement \”state whether any affected employees who haveelected party status have raised an objection to the reasonableness ofany abatement time.\” In compliance with this requirement, the agreementhere contained the following declaration:All conditions cited have been abated. There being no cited conditionswhich remain unabated at the time of execution of this Agreement, thematter of unreasonableness of abatement time is not at issue, and noaffected employee having elected party status has raised an objectionthereto.In its petition for discretionary review, the Machinists union claimsthat because it was not properly served with the agreement, it wasdenied the opportunity to \”review, determine or possibly object to thecurrent status of those cited conditions.\” However, the right to makeobjections to the Commission concerning the reasonableness of theabatement period set forth in a settlement agreement does not entitleemployees or their authorized representatives to challenge a settlementagreement on the ground that abatement has not occurred. _OCAW v. OSHRC(American Cyanamid Co._), 671 F.2d 643, 649 (D.C. Cir. 1982),_cert_,_denied_, 459 U.S. 904 (1982).”