“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-2485 REYNOLDS METALS COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 12, 1979ORDERBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.COTTINE, Commissioner:??????????? TheAugust 10, 1978 Order of Administrative Law Judge Seymour Fier, approving asettlement agreement filed by the respondent, Reynolds Metals Company(?Reynolds?), and the Secretary of Labor, is before the Commission for reviewunder ? 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?651 et seq. The issues to be considered include: (1) whether the authorizedemployee representatives[1] were served with alldocuments filed in this case in accordance with the Commission Rules ofProcedure, and (2) whether they were afforded a sufficient opportunity to fileobjections to the settlement agreement.??????????? OnMay 18, 1978, Reynolds was issued a citation alleging a serious violation of 29C.F.R. ? 1910.151(c) and a serious violation of section 5(a)(1) of the Act, 29U.S.C. ? 654(a)(1). Reynolds timely contested these items of the citation, anda settlement agreement was subsequently negotiated by Reynolds and theSecretary. According to the terms of the agreement, Reynolds would withdraw itsnotice of contest, the penalties would be reduced, and the abatement dateswould be extended.??????????? In aletter received by the Commission on October 6, 1978, and served on Reynoldsand the authorized employee representatives, the Secretary requests theCommission to affirm Judge Fier?s Order. The Secretary states that theauthorized employee representatives, as parties, should have been served withcopies of the proposed settlement agreement at the time it was filed with JudgeFier. However, the Secretary notes in his letter that the solicitor?s officehas contacted the two authorized employee representatives and has been informedthat the representatives have received and reviewed the agreement and have noobjections to its provisions. In addition, the Steelworkers have indicatedtheir approval of the settlement agreement in a September 28, 1978 letter tothe Commission.[2]??????????? Reynoldsalso requests the Commission to affirm the judge?s order. It does not disputethe authorized employee representatives? right to receive service of theproposed settlement agreement or Reynolds? failure to serve the agreement inthis case. However, Reynolds indicates it was unaware of the representativeshaving elected party status until it received the Direction for Review.??????????? Electionof party status entitles the authorized employee representative to meaningfulparticipation in settlements. Aspro, Inc., Spun Steel Division, 78OSAHRC 78\/C8, 6 BNA OSHC 1980, 1978 CCH OSHD ?23,032 (No. 78?1381, 1978).[3] One consideration inreviewing settlement agreements is whether affected employees and theirrepresentatives have been notified and afforded an opportunity to be heard. TheCommission Rules of Procedure specifically provide for employee notice byrequiring that proposed settlement agreements be served upon represented andunrepresented affected employees. Commission Rule 100(c); 29 C.F.R. ?\u00a02200.100(c).[4] Thus, regardless of theirparty status, the employee representative should have been served.[5] Service of the settlementis particularly important where the authorized employee representatives haveindicated an interest in the proceedings and an intent to participate.[6]??????????? Inthe present case, neither Reynolds nor the Secretary was aware that therepresentatives of the Steelworkers and the Machinists had elected partystatus. It is imperative that the Secretary and the Respondent be informed thatparty status elections have been made.[7] It is, therefore, incumbentupon the Commission judge to advise the Respondent and the Secretary ofelections of party status.[8] IMC Chemical Group,Inc., OSAHRC Docket No. 76?4761, slip op. at 6, n. 4 (November 17, 1978).??????????? Inaddition, the settlement agreement in this case indicates that any objectionsto the entry of an order approving the agreement should be filed with theExecutive Secretary of the Commission. However, Commission Rule 100(c) providesfor service of the proposed agreement on affected employees before the settlementagreement is submitted to the Commission judge. Employee objections to theagreement should be filed with the judge who is considering the merits of theagreement in the first instance. Instructing affected employees or theirauthorized employee representatives to file objections with the CommissionExecutive Secretary may preclude the employees from having their objectionsconsidered by the judge.[9] See Aspro, Inc., SpunSteel Division, supra.??????????? TheCommission has received a letter from the Machinists dated September 19, 1978,reiterating the request originally made in its election of party status toparticipate in ?a hearing before the Review Commission if a hearing is held.?We have previously referred to the Secretary?s letter of October 5, 1978, statingthat neither authorized employee representative objects to the settlementagreement. However, in light of the fact that the September 19 letter from theMachinists represents our last direct communication from that representative,we are uncertain whether any objections to the agreement remain at this date.We consider it necessary, therefore, to afford the authorized employeerepresentatives an opportunity to be heard on this matter.??????????? Accordingly,the August 10, 1978 Order of Judge Fier, approving the settlement agreementexecuted by the Secretary and Reynolds, is affirmed unless, 10 days from theissuance of this Order, affected employees or their authorized employeerepresentatives indicate an objection to the agreement. The objection, if any,is to be communicated to the Executive Secretary.?It is so ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JAN 12, 1979?BARNAKO, Commissioner, Concurring in part andDissenting in part:??????????? Iconcur in affirming the order of Administrative Law Judge Seymour Fierapproving the settlement executed by the Secretary and Reynolds Metals Company(?Reynolds?), but I dissent from the conditions my colleagues attach to theaffirmance. They permit both the United Steelworkers of America(?Steelworkers?) and the International Association of Machinists and AerospaceWorkers (?Machinists?) to file with the Executive Secretary any objections tothe settlement, in which event the Commission presumably will withdraw itsaffirmance approving the settlement and remand for further proceedings. For thefollowing reasons, I would not permit the Steelworkers the right to object tothe settlement, and I would limit the Machinists? opportunity to do so.??????????? As mycolleagues note, after Reynolds contested the May 18, 1978 serious citation andnotification of proposed penalties,[10] the Steelworkers and theMachinists, the authorized representatives of affected employees, elected partystatus, by letters dated July 17 and July 28 respectively.[11] Their letters were filedwith the Executive Secretary of the Commission.[12] The Steelworkers alsoserved a copy of their election letter on the Secretary. Thereafter, on July21, the Secretary and Reynolds entered into a settlement by which the Secretaryextended the time for abatement and reduced the amount of penalty, and Reynoldswithdrew its notice of contest. The Secretary and Reynolds certified thesettlement had been served on the employees pursuant to Commission Rule 7[13] in the following manner:(1) By mailing or personal deliveryof said Settlement Agreement to those employees represented by an authorizedemployee representative, if any, in accordance with section 7(f) of theRules of the Commission, and\/or (2) by posting in a place where theCitation is required to be posted, a copy of this Agreement so as to informemployees who are not represented by an authorized employee representative, ifany, in accordance with section 7(g) of the Rules of the Commission(emphasis added).???????????? Noticewas also given that, within ten lays of the posting of the settlement, employeesor their authorized representatives should file with the Executive Secretary ofthe Commission any objections to the settlement.??????????? JudgeFier approved the settlement in an order issued on August 10, one day after hereceived the settlement. Subsequently, on September 11, Commissioner Cottinesua sponte directed the case for review on the issues, essentially, of whetherthe authorized employee representatives as parties in the proceedings wereserved with all documents filed in the case in accordance with the CommissionRules of Procedure, and whether they were given sufficient opportunity toobject to the settlement.??????????? Inresponding to the Direction for Review, the Secretary and Reynolds concede thatthe Steelworkers and Machinists were not served with the documents, includingthe settlement, in this case. Reynolds also essentially concedes that theunions were not given an opportunity to participate in the settlementnegotiations or to object to the terms of settlement. Reynolds states that theDirection for Review was the first indication it had that employees had electedparty status, and that therefore, after receiving the Direction for Review, itserved the unions with all documents including the settlement. Reynolds arguesthat the unions may now either file statements with the Commission that theyhave no objections or make any objections known to all parties for theirconsideration. The Secretary, by letter dated October 5, states that hediscussed the details of the settlement with both unions before submitting thesettlement to the judge. He further asserts that he contacted both theMachinists and the Steelworkers subsequent to their receipt of the settlementserved by Reynolds, and was informed by them that they did not object to thesettlement.??????????? OnSeptember 15, apparently before review of the terms of the settlement served byReynolds on September 14, the Steelworkers objected to the lack of notice andopportunity to participate in the settlement; but on September 28, theSteelworkers stated that, having considered the settlement terms, they have noobjection. The Machinists have not responded to the Direction for Review or tothe settlement except by filing, on September 19, a letter stating, in the samewords as their July 28 election letter, that they intend to participate in anyhearing that may be held in this case before the Commission.??????????? Thiscase primarily involves two issues. The first is the right of the authorizedemployee representative of affected employees to be served with the settlementagreement pursuant to Commission Rule 100(c) and Rules 7(f) and (c).[14] I agree with the majoritythat this right exists regardless of the election of party status by therepresentative and would add that it is to be accomplished through service ofthe settlement agreement on the authorized employee representative by postagepre-paid first class mail or by personal delivery before the settlement issubmitted to the judge. Although both the Secretary and Reynolds concede thatthe Steelworkers and Machinists were not served with the settlement agreementprior to its submission to the judge, Reynolds has represented that it has nowserved the unions with the settlement so that any issue regarding thisrequirement is moot.[15]??????????? Thesecond issue involves the right of the authorized employee representative ofaffected employees who has elected party status to participate in settlementnegotiations. In Kaiser Aluminum & Chemical Corp., No. 76?2293 (Dec.4, 1979) (dissenting opinion),[16] I stated that theSecretary should inform the employees or their representative who have electedparty status of any settlement negotiations prior to formulation of the final settlementso that the employees may make their views known and raise any objectionsconcerning the proposed settlement to the Secretary. The Secretary should thenconsider their views in determining whether to proceed with settlement.[17] However, if the Secretaryand employer have agreed to a settlement despite objections by the union andpresented the settlement agreement to the judge, it is my position that theunion can object before the judge only to the reasonableness of the timespecified in the settlement for abatement, provided that the settlementconcerns a period for abatement. See ITT Thompson Industries, Inc.,supra note 6 (concurring opinion and cases cited therein), and IMC ChemicalGroup, Inc., supra note 6 (dissenting opinion).??????????? Herethe Steelworkers and Machinists became parties by filing election letters withthe Executive Secretary.[18] There is some dispute asto whether they were informed of the settlement negotiations and had theopportunity to present their views to the Secretary and Reynolds for theirconsideration in reaching settlement.[19] Nevertheless the Steelworkershave now informed the Commission that they do not object to the settlementterms. Accordingly, there is no reason to give them further opportunity toconsider the terms of settlement, and I dissent from my colleagues action in sodoing.??????????? Whetherthe Machinists wish to object to the settlement is unclear,[20] and this lack of claritywarrants permitting the Machinists the opportunity to present objections.However, I would limit the manner in which they may object. Because thesettlement contains terms extending abatement periods, I would afford theMachinists 10 days from the issuance date of this order to raise any objectionsto the reasonableness of the abatement period by filing objections with theExecutive Secretary. Any other objections the Machinists may have to thesettlement should be made known to the Secretary and, if they desire, Reynolds,within 10 days following issuance of the Commission order. I would then permitthe Secretary and Reynolds an additional ten days in which either may requestthe Commission to remand the case to the judge for further proceedings if, inview of the Machinists? objections, either wishes to abrogate consent to theterms of the settlement. Cf. Kaiser Aluminum & Chemical Corp., supra(dissenting opinion). Accordingly, I dissent from my colleagues? order insofaras they permit any objections, other than to the reasonableness of theabatement time, to be submitted to the Executive Secretary.[1] The UnitedSteelworkers of America (?Steelworkers?) elected party status under CommissionRule 20(a), 29 C.F.R. ? 2200.20(a), on July 17, 1978. In a July 28, 1978letter, the International Association of Machinists and Aerospace Workers(?Machinists?) also elected party status.[2] The Steelworkershad filed a petition for discretionary review on September 15, 1978?4 daysafter the date on which the judge?s order would have become final had reviewnot been directed. The petition, however, objects only to the union?s lack ofnotice, not to the merits of the agreement.[3] CommissionerBarnako notes his concurring opinion in ITT Thompson Industries, Inc.,78 OSAHRC 70\/D10, 6 BNA OSHC 1944, 1978 CCH OSHD ?22,944 (Nos. 77?4174 &77?4175, 1978), where he explained his interpretation of the phrase ?meaningfulemployee participation.?[4] Rule 100Settlement.(c)Where parties to settlement agree upon a proposal, it shall be served uponrepresented and unrepresented affected employees in the manner set forth inRule 7 hereof. Proof of service shall accompany the proposed settlement whensubmitted to the Commission or the judge.[5] Commission Rule7(d), 29 C.F.R. 2200.7(d), requires that a written statement indicating thedate and manner of service be filed with the agreement. Paragraph VI of theagreement before us certifies service by mail or personal delivery onauthorized employee representatives ?if any . . . and\/or? by posting. The useof the qualifying terms ?if any? and ?and\/or? renders the certification ofservice ambiguous and inadequate under Rule 7(d).[6] Commission Rule7(a) specifically requires that ?[a]t the time of filing pleadings or otherdocuments a copy thereof shall be served by the filing party or intervenor orevery other party or intervenor.?[7] We note that theSeptember 28, 1978 letter of the Steelworkers indicates that, in the future,party status elections will be sent to the Regional Solicitor and the citedemployer as well as to the Commission. This practice should ensure that theSecretary and the Respondent are aware of party status elections.[8] We further notethat an examination of the record reveals no indication that the authorizedemployee representatives were served with the judge?s August 10, 1978 Orderapproving the settlement agreement.[9] The Direction forReview in this case also questioned whether the judge erred in approving theagreement without waiting a sufficient period of time to allow possibleobjections to be filed. The judge received the proposed agreement on August 9,1978, and approved it on August 10, 1978. Commission Rule 37, 29 C.F.R. ?2200.37, allows a party 10 days from service of a motion to file a response. Anadditional 3 days is afforded if the settlement is served by mail; CommissionRule 4(b), 29 C.F.R. ? 2200.4(b). Inasmuch as the authorized employeerepresentatives were not served with the proposed agreement in this case theycould not have filed their objections within the responsive period provided byRule 37. It should be noted, however, that parties are entitled to rely on theperiod allowed for the filing of responses and it is error for the judge totake action on a motion prior to the expiration of this period.[10] In item 1 of thecitation, the Secretary alleged Reynolds violated section 5(a)(1) of the OccupationalSafety and Health Act of 1970 (?the Act?), 29 U.S.C. 651 et seq., specifiedabatement by June 16, 1978, and proposed a penalty of $700. In item 2 of thecitation, the Secretary alleged Reynolds violated 29 C.F.R. 1910.151(c),specified abatement by May 25, 1978, and proposed a penalty of $500.[11] Commission Rule20(a), 29 C.F.R. 2200.20(a), provides that ?[a]affected employees may elect toparticipate as parties at any time before the commencement of the hearingbefore the judge . . ..? The Steelworkers stated specifically that ?[o]n behalfof the affected employees, I [the Staff Representative, Safety & HealthDepartment, USWA] wish to elect party status . . ..? The Machinists stated that?. . . we intend to participate in a Hearing before the Review Committee ifsuch a Hearing is held.?[12] Commission Rule8(a), 29 C.F.R. 2200.8(a), provides that ?[p]rior to the assignment of a caseto a Judge, all papers shall be filed with the Executive Secretary . . . .?[13] Commission Rule100(c), 29 C.F.R. 2200.100(c), pertaining to the service of settlementagreements upon represented and unrepresented affected employees, provides that?[w]here parties to settlement agree upon a proposal, it shall be served uponrepresented and unrepresented affected employees in the manner set forth inrule 7 hereof. Proof of such service shall accompany the proposed settlementwhen submitted to the Commission or the Judge.?Service upon represented andunrepresented affected employees is provided for in paragraphs (f) and (g)Commission Rule 7, 29 C.F.R. 2200.7(f) and (g).Paragraph (f) states that?[s]ervice and notice to employees represented by an authorized employeerepresentative shall be deemed accomplished by serving the representative inthe manner prescribed in paragraph (c) of this section.? Paragraph (c) permitsservice by ?postage pre-paid first class mail or by personal delivery.Paragraph (g) states that ?[i]n theevent that there are any affected employees who are not represented by anauthorized employee representative, the employer shall, immediately uponreceipt of notice of the docketing of the notice of contest or petition formodification of the abatement period, post, where the citation is required tobe posted, a copy of the notice of contest and a notice informing such affectedemployees of their right to party status and of the availability of allpleadings for inspection and copying at reasonable times. [Form of the noticeomitted].[14] See footnote 3supra.[15] I agree with mycolleagues that the language of the proof of service contained in thesettlement indicating the time and manner of service was so ambiguous as to beimpermissibly unclear that the required service was accomplished.[16] See also IMCChemical Group, Inc., No. 76?4761 (November 17, 1978) (dissenting opinion atnote 12), and ITT Thompson Industries, Inc., 78 OSAHRC 70\/D10, 6 BNA OSHC 1944,1978 CCH OSHD para. 22,944 (Nos. 77?4176 & 77?4175, 1978) (concurringopinion).[17] As the person incharge of enforcing the Act for employee health and safety, the Secretary isacting for the benefit of employees and therefore is the primary person to whomthe employees who have elected party status should make their views known. Inentering into a settlement, the Secretary may agree to conditions favorable tothe employer, such as withdrawal of a citation and reduction incharacterization of a violation, and should know and take into considerationthe views of those employees who are parties. Additionally, employees or theirauthorized employee representatives may wish to make their objections known tothe employer for its consideration. As parties, employees have this right.[18] Commission Rule7(a), 29 C.F.R. 2200.7(a), provides that ?[a]t the time of filing pleadings orother documents a copy thereof shall be served by the filing party orintervenor on every other party or intervenor.? The rule pertaining to electionof party status by affected employees, Commission Rule 20(a), in note 2, supra,establishes that affected employees have party status upon filing an electionletter, and therefore are considered a party within the meaning of the servicerequirements of Rule 7(a). Therefore the unions were required to serve theirelection letters on all parties. Accordingly, I disagree with the statement ofmy colleagues that it is ?. . . incumbent upon the Commission judge to advisethe Respondent and the Secretary of elections of party status,? and with theirmere approval of a voluntary practice of serving the employer and theSecretary.[19] The Secretary assertsthat ?the authorized representatives of the employees directly affected by theviolations? were informed of the settlement terms prior to submission of theagreement to the judge. The Steelworkers assert, however, that they did notknow the terms of the settlement prior to the agreement?s submission to thejudge.[20] With respect tothe lack of clarity on their agreement to the settlement, I note that aninference arises that they do not object. The copy of the settlement was servedon September 14, and therefore more than three months has elapsed for theMachinists to object. Moreover, the Machinists have not disputed theSecretary?s assertion in his letter filed October 5 and served on them thatthey informed him they do not object to the settlement on having reviewed it.Nevertheless, whether the Machinists agree to the settlement remains unclearbecause, rather than waiving objections by affirmatively stating they agree,they have only responded on review by reasserting their intent to participateas a party in the proceedings.”