“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?O737 \u00a0 TEXACO, INC., RESPONDENT & OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION AND ITS LOCAL 4-23, AUTHORIZED EMPLOYEE REPRESENTATIVE \u00a0 \u00a0 \u00a0 \u00a0 \u00a0September 30, 1982DECISIONBefore: ROWLAND, Chairman; CLEARY, Commissioner.[1]BY THE COMMISSION:??????????? Anorder of Administrative Law Judge Erwin L. Stuller approving a settlementagreement between the Secretary of Labor and Texaco, Inc., is before theCommission for review. The judge held that the Oil, Chemical and Atomic WorkersInternational Union and its Local 4?23 (?the Union?) were not entitled to anevidentiary hearing on certain objections they raised to the agreement.Commissioner Cleary directed review of the judge?s decision pursuant to section12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. ? 661(i)).The principal issue on review is whether an employee party can object toprovisions in a settlement agreement between the Secretary of Labor and a citedemployer wherein the Secretary agrees to withdraw contested items of acitation.??????????? Thetwo participating members are divided on the disposition of this case. ChairmanRowland would affirm the judge?s ruling on the ground that the Commission lacksauthority to consider employee objections that are not related to the abatementperiod. Mobil Oil Corp., 82 OSAHRC??, 10 BNA OSHC 1905, 1982 CCH OSHD ?26,187 (No. 77?4386, 1982) (dissentingopinion). Chairman Rowland agrees with Texaco?s argument that the Secretary?sdecision to withdraw the three items at issue eliminates from any possiblecontroversy the one point on which an employee party should be permitted to objectto a settlement agreement.1 CommissionerCleary would vacate the judge?s order and hold that the Commission hasjurisdiction to consider the Union?s substantive objections to the settlementagreement. For the reasons stated in his concurring opinion in Mobil Oil Corp., supra, CommissionerCleary would hold that under section 10(c) of the Act affected employees whohave elected party status must be afforded the opportunity to review and raiseobjections to settlements proposed by the other parties, including objectionsto matters other than the abatement period specified in a settlement proposal.??????????? Inview of the divided vote on the merits of the case, Chairman Rowland andCommissioner Cleary agree to dispose of the case by vacating the direction forreview. Baldwin Industries, Inc., 82OSAHRC ??, 10 BNA OSHC 1572, 1982 CCH OSHD ?25,980 (No. 78?741, 1982), appeal filed, No. 82?7178 (11th Cir. May28, 1982).??????????? Accordingly,the direction for review is vacated and the judge?s order is the Commission?sfinal disposition of this case.?SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: SEP 30, 1982\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?O737 \u00a0 TEXACO, INC., RESPONDENT & OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION AND ITS LOCAL 4-23, AUTHORIZED EMPLOYEE REPRESENTATIVE \u00a0 \u00a0 \u00a0 \u00a0 August 28, 1978?DECISION AND ORDERAPPEARANCES:JACK F. OSTRANDER, Esquire Office of theSolicitor U.S. Department of Labor555 Griffin Square Bldg?Suite 501 Griffinand Young Streets Dallas, Texas 75202 Attorney for Complainant\u00a0MARK A. LIES, II, Esquire Seyfarth, Shaw,Fairweather & Geraldson55 East Monroe Street Chicago, Illinois60603 Attorney for Respondent.\u00a0STEVEN WODKA, International RepresentativeOil, Chemical and Atomic WorkersInternational Union Local 4?23 1126 16thStreet, N.W. Washington, D.C. 20036 Representative for Affected Employees\u00a0ANTHONY MAZZOCCHI, Vice-President Oil,Chemical and Atomic WorkersInternational Union Local 4?23 1126 16thStreet, N.W. Washington, D.C. 20036 Representative for Affected Employees?DECISION??????????? TexacoInc. has been charged with four violations of the Occupational Safety andHealth Act. The charges are contained in a citation that was issued on January26, 1978. Texaco contested the citation. After the complaint was filed, theauthorized representative of the affected employees, the Oil, Chemical andAtomic Workers International Union (OCAW), elected party status. They did notfile a pleading.??????????? Thecase was called to trial on June 6, 1978. It was then continued to July 13,1978.??????????? Atthe hearing, the Secretary and Texaco announced that they had reached a basisfor the settlement of all issues. All of the parties agreed to the settlementprovisions for Item 1 of the citation.[2] As to the three remainingitems, the Secretary and Texaco agreed that prosecution of these items would bewithdrawn and moved that the items be vacated. OCAW objected.??????????? OCAWargues that once they elect party status and indicate that they are interestedin prosecuting the complaint, no part of the citation or complainant can bevacated without their approval. They believe that they must be allowed toprosecute the Secretary?s citation and complaint when the Secretary refuses todo so.??????????? Inhis brief, the Secretary cites one case to support his position: Secretary of Labor v. Southern BellTelephone and Telegraph Co., 77 OSAHRC 83\/D1, 5 BNA OSHC 1405, 1977?78 CCHOSHD para. 21, 8040, (No. 10340, 1977.). In that case the Commission held thatonly the Secretary has enforcement power under the Act. The exclusiveness ofthis power does not allow the affected employees to take over the prosecutionor force the Secretary to prosecute. The affected employees do not have theright to prosecute citations. They have no standing to contest the Secretary?swithdrawal of a citation. Apparently, in an employer contest, the employees?rights as a party may be exercised only if the other parties wish to go forwardwith the case. Therefore, OCAW?s objection to the withdrawal of three items ofthe citation is overruled.??????????? OCAWhas also requested an order that would require ?the Secretary to consult withthe authorized employees representative before amending any citations or makingany settlement offers in all cases with Texaco Inc., at their facility (PortArthur, Texas)?. This order was requested because there are several such casespresently pending before judges of this Commission. OCAW is fearful that theSecretary may attempt to settle these cases without their assistance or approval.ORDER??????????? Thecharacterization of the violation alleged in Item 1 is amended from ?Serious?to ?Nonserious?. The abatement provisions and abatement date of the item arestricken and those provisions contained in parties? Settlement Agreement issubstituted in their place as if repeated here word for word. Item 1, asamended, is AFFIRMED. The proposed penalty of $1000 is VACATED.?Items 2, 3, and 4 of the citation and the relatedproposed penalties are VACATED.?ERWIN L. STULLERJudgeDATED: August 28, 1978*CommissionerCOTTINE took no part in the consideration or decision of this case.1 Under thesettlement agreement, a fourth item is to be affirmed and a detailed plan forthe abatement of that violation is to be implemented. Nevertheless, the Unionhas expressly agreed to the settlement agreement?s disposition of that citationitem, including the abatement period established by the agreement.[2] Pertinentprovision of the Settlement Agreement for Item 1 of the citation, beginning onpage 6 of Transcript of Proceedings, is as follows:(A) Item 1 of the Citation will allege anon serious violation of 29 CFR 1910.95(b)(1), with no penalty againstRespondent.(4) Respondent will retain the services ofa qualified engineering consultant to advise Respondent with respect topotential engineering controls available to reduce noise levels. Respondentrepresents it already has obtained services of such a consultant.(5) Respondent agrees to implementengineering controls which are now feasible, in an attempt to reduce soundlevels in Respondent?s P&S Building (barrel painting facility) to withinthe levels of Table G?16 or as low as is feasible if it is not possible toreduce levels to within limits of Table G?16.(6) Respondent agrees to implementfeasible administrative controls to regulate employee contact with noiseconditions present in Boiler House No. 6.(7) Respondent represents that itsaffected employees are currently using and will continue to use, and thatRespondent is currently enforcing and will continue to enforce, the use ofpersonal hearing protection by the affected employees during the period ofimplementation of said engineering and administrative controls, and that othertimes, when employees are exposed to noise levels in excess of Table G?16.(8) Respondent agrees within 60 days tosubmit a proposed plan of feasible engineering and administrative controls ofnoise control measures to the Area Director, Houston, Texas, that will beimplemented to abate the violations alleged in Item 1 of the non seriousviolation issue, January 26, 1978.(9) Within 40 days after submission of anabatement plan to the Area Director, Occupational Safety and HealthAdministration, Houston, Texas, Respondent agrees to complete feasibleadministrative or engineering controls in order to abate the violations allegedin Item 1 of the citation issued January 26, 1978.”