“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79-0929 NATIONAL STEEL AND SHIPBUILDING COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 29, 1980DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Thiscase is before the Commission pursuant to section 12(j), 29 U.S.C. ? 661(i), ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651?678.Administrative Law Judge Jerry W. Mitchell approved a settlement agreemententered into by the parties. Commissioner Cottine directed review of this caseon the question of whether the judge erred in approving a settlement agreementcontaining a provision to the effect that a violation being affirmed could notbecome the basis of a future repeat violation.[1]??????????? Sincethe issuance of the judge?s decision in this case, the Commission has held thata settlement agreement that contains exculpatory language, even though thatlanguage may cast doubt as to whether the violation may be used in futureproceedings against the Respondent, will be approved by the Commission as longas the agreement otherwise meets the requirements set out in DawsonBrothers-Mechanical Contractors, 72 OSAHRC 5\/B8, 1 BNA OSHC 1024, 1971?73CCH OSHD ?15,039 (No. 12, 1972) and Commission Rule 100.[2] Farmers Export Co.,80 OSAHRC ??, 8 BNA OSHC 1655, 1980 CCH OSHD ?24,569 (No. 78?1708, 1980).[3]??????????? CommissionRule 100, which essentially codifies the criteria set forth in DawsonBrothers-Mechanical Contractors, supra, provides, in pertinent part, as follows:?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.\u00a0??????????? Theagreement includes a motion by the Secretary to withdraw specified items of thecitation. Inasmuch as no penalty is to be assessed a promise to pay the penaltyis not required. A specific abatement date has been established. The record,however, fails to demonstrate affirmatively that a copy of the settlement agreementwas ?served upon represented and unrepresented affected employees in the mannerprescribed for notices of contest? as required by Commission Rule 100(c),supra. Thus, the settlement agreement does not meet the criteria set forth inRule 100.??????????? Accordingly,the case is remanded to the judge to allow the parties the opportunity toprovide proof of service of the settlement proposal and, if necessary, toconduct further proceedings consistent with this opinion and Commission Rule100(c).?SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: AUG 29, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79-0929 NATIONAL STEEL AND SHIPBUILDING COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 2, 1980ORDER APPROVING SETTLEMENT STIPULATIONSAGREED TO DURING OPEN HEARING??????????? Aplace of business and employment under the operation and control of NationalSteel and Shipbuilding Company (National), located in the lead shop atNational?s ship building and ship repair yard at Harbor Drive and 28th Streetin San Diego, California, was inspected by a representative of the Secretary ofLabor (the Secretary) on 26 January 1979. Following that inspection, theSecretary issued Citation No. 1 to National on 29 January. That citationalleged Nonserious violation of five separate safety and health standards andproposed a penalty of $0.??????????? Nationalcontested each of the five Items of the citation in a letter dated 9 February.After complaint and answer were duly filed, the parties entered into settlementnegotiations. Following two telephone pretrial conferences in which the partieswere unable to agree to settlement, they were instructed to continuenegotiations during trial preparations and the case was set for trial on 14November. At the time trial was to convene on 14 November, the parties advisedthat they were very close to agreement and requested an additional hour inwhich to conclude their negotiations. When the record was opened an hour afterthe time scheduled for convening, the parties stated their agreement on therecord and requested opportunity to put that agreement into a writtenstipulation. This request was granted after noting on the record that none ofNational?s affected employees or their representatives were present, eventhough their union was aware of the trial and had indicated to counsel for theSecretary on 13 November that counsel for the Union would be present at thetrial on 14 November.??????????? On 7December, the parties filed a document captioned ?Settlement Stipulations?,executed by National on 30 November and by the Secretary on 3 December. Thefile and record herein shows that:??????????? 1.National agrees to the affirmance of Item 3 of the Citation as that Item is setforth in paragraph IV C of the complaint;??????????? 2.The Secretary withdraws Items 1, 2, 4, and 5 of Citation No. 1;??????????? 3.The parties have not agreed that the federal shipbuilding safety standardsapply to the circumstances involved here and there is no determination in thisproceeding as to the applicability or non-applicability of the federalstandards in this situation;??????????? 4.The parties agree that the citation issued on 29 January 1979, and at issuehere, shall not become the basis for the issuance of a future repeat citation;??????????? 5.Within sixty days of 3 December 1979, National will fabricate and test a?flanged hood? engineering control following the design of a model to befurnished by the Secretary. National will submit test results of the use of the?flanged hood?, including air sample data before and after use of thisengineering control, to the Secretary for evaluation. If the tests show anappreciable reduction in the atmospheric levels of lead and zinc chloride withrespect to the work processes in National?s lead facility, National willimplement use of the ?flanged hood? engineering control; and??????????? 6.Even though National?s affected employees and the union representing them, werefully aware of the date, time, and place of the trial and indicated on the daybefore that trial that the union would be represented at the trial, there wasno appearance by any affected employee or the union at the trial on 14November.??????????? Accordingly,the Settlement Stipulations being consistent with the provisions and fullyeffectuating the purposes of the Act by providing for abatement of thehazardous working conditions, it is?ORDERED that:??????????? 1.The Settlement Stipulations be, and hereby are, APPROVED;??????????? 2.The Secretary?s withdrawal of Items 1, 2, 4, and 5 of Citation No. 1 be, andhereby are, APPROVED;??????????? 3.Items 1, 2, 4, and 5 of Citation No. 1 be, and hereby are, VACATED;??????????? 4.Item 3 of Citation No. 1, as modified and set forth in paragraph IV C of thecomplaint be, and hereby is, AFFIRMED.?JERRY W. MITCHELLJudge, OSHRC Burlingame, CADATED: January 2, 1980[1] The agreementcontains the following language:4. That the citation . . . giving rise tothe above-captioned matter shall not be utilized as or form the basis of afuture repeat citation.[2] 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).[3] In CommissionerCottine?s view, a settlement agreement can be approved only when it complieswith Commission Rule 100(a).(a) Policy . . .. A settlement proposalshall be approved when it is consistent with the provisions and objectives ofthe Act.29C.F.R. ? 2200.100(a). In his view, an agreement containing exculpatory languagethat attempts to limit the use of affirmed violations in future proceedingsunder the Act is inconsistent with the provisions and objectives of the Act andunder Commission Rule 100(a) should not be approved. Farmer?s Export Co.,supra (dissenting opinion).”