“SECRETARY OF LABOR,Complainant,v.UNITED STATES STEEL CORP.,Respondent.ROY LEE SMITH,Intervenor.OSHRC Docket No. 80-2425_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.ROWLAND, Chairman:The issues before us in this case are whether Administrative Law JudgeBarbara L. Hassenfeld erred in (1) approving a settlement agreementbetween the Secretary and Respondent despite the claim by an affectedemployee that the agreement did not require Respondent to pay the fullamount of medical removal protection benefits due him under 29 C.F.R.?1910.1025(k)(2)(i) and (2) classifying the violation of that standardas repeated in nature. For the reasons that follow, we conclude that thejudge did not err in disregarding the employee’s claim but that theviolation was not shown to be repeated in nature.IThe Respondent, United States Steel Corp., operated a manufacturingfacility in New Haven, Connecticut, that was inspected by anOccupational Safety and Health Administration (\”OSHA\”) complianceofficer. As a result of that inspection, the Secretary of Labor (\”theSecretary\”) issued a citation to Respondent alleging a repeatedviolation of the Occupational Safety and Health Act, 29 U.S.C.??651-678, in that Respondent failed to comply with 29 C.F.R.?1910.1025(k)(2)(1), a standard requiring the provision of medicalremoval protection (MRP) benefits to employees who are removed fromtheir jobs due to exposure to lead. Roy Lee Smith, the employee whoallegedly did not receive MRP benefits from Respondent, sought tointervene in the proceeding. Since Smith was at the time of the allegedviolation an employee in a bargaining unit represented by the UnitedSteelworkers of America, Local 2141, which has not made any appearancein this case, both the Secretary and Respondent opposed Smith’s petitionfor intervention on the ground that Smith’s participation in thisproceeding is precluded under Commission Rule of Procedure 22(c), 29C.F.R. ?2200.22(c).[[1\/]] After considering these arguments, JudgeHassenfeld granted the employee’s petition under Commission Rule 21(c),29 C.F.R ?2200.21(c),[[2\/]] but set forth several restrictions on theextent of the employee’s participation. These limitations werewarranted, in the judge’s view, on the ground that Rule 22(c) requiredthat the employee \”be represented by his union if he wishes to fullyintervene.\”The case was subsequently submitted to Judge Hassenfeld for a decisionon the merits based on a stipulation of facts in lieu of an evidentiaryhearing.Included in the stipulation was an agreement by the parties thatunder the terms of the cited standard Roy Lee Smith was entitled tomedical removal protection benefits in the amount of $973.27. Thestipulation also stated that the contested violation was alleged to berepeated because a citation alleging a violation of the same standardpreviously had been issued to Respondent. That prior citation, which hadalso been contested, was then pending before Administrative Law JudgeFoster Furcolo in OSHRC Docket No. 80-749.In her decision, Judge Hassenfeld found, based on the stipulated facts,that Respondent had failed to comply with the cited standard.Furthermore, she concluded that the violation before her was repeatedbecause she had been advised that the parties had filed a stipulation inDocket No. 80-749 providing for affirmance of the citation in issue inthat case.In accordance with Judge Hassenfeld’s prior order granting Smith alimited right of intervention, Smith had been given the opportunity tofile comments on the parties’ stipulation of facts \”for informationalpurposes only.\” Smith had filed extensive comments challenging theagreement of the parties concerning the amount of MRP benefits he wasentitled to under the cited standard. In her decision affirming thealleged violation, the judge did not consider Smith’s objections to theparties’ stipulation.IIAUnder Commission Rule 20(a),[[3\/]] affected employees may elect toparticipate as parties in Commission proceedings. In Babcock & WilcoxCo., 80 OSAHRC 95\/A2, 8 BNA OSHC 2102, 1980 CCH OSHD ?24,812 (No. 78-446, 1980), a divided Commission held that an individual who was an\”affected employee\” within the meaning of the Commission’s rules couldnot elect party status because he was a member of a union that was an\”authorized employee representative\” within the meaning of theCommission’s rules. The majority reached this conclusion notwithstandingthe fact that the union had not elected party status or otherwise beeninvolved in any other manner in the Commission’s proceedings. It basedits holding on what it asserted were \”the clear terms of Rule 22(c),\”thereby implicitly interpreting the term \”represented\” as it is used inthat rule as meaning represented for purposes of collective bargaining.Commissioner Cottine dissented from the majority’s interpretation ofCommission Rule 22(c). In essence, he concluded that the term\”represented,\” as it is used in that rule, refers to representation in aproceeding before the Commission rather than representation incollective bargaining with the employer. Thus, he stated:The proper interpretation of this rule . . . is that a member of acollective bargaining unit is prevented from appearing only whenactually represented by tile union in our proceedings. If the union doesnot enter an appearance, affected employees who are members of acollective bargaining unit should be permitted to appear in the samemanner as affected employees who do not have a collective bargaining agent.(Emphasis supplied by Commissioner Cottine; footnote omitted.) Id., 8BNA OSHC at 2109, 1980 CCH OSHD at p. 30,569.After carefully considering the positions of both the majority and thedissenting Commissioner in Babcock & Wilcox, I conclude that that casewas erroneously decided. I do not, however, agree with all of thereasoning of the dissenting opinion in that case. Indeed, much of thatreasoning is inconsistent with my own views as expressed most recentlyin Mobil Oil Corp., 82 OSAHRC __, 10 BNA OSHC 1905, 1982 CCH OSHD?26,187 (No. 77-4386, 1982) (dissenting opinion). Nevertheless, Iconclude that Commissioner Cottine’s interpretation of Commission Rule22(c) is correct. The caption of Rule 22 is \”Representatives of partiesand intervenors\” and the subject matter of the entire rule is therepresentation of parties and intervenors in Commission proceedings.These facts strongly support the view that the term \”represented\” as itis used in Rule 22(c) refers to representation in our proceedings. Cf.Chesapeake Operating Co., 82 OSAHRC ___, 10 BNA OSHC 1790, 1982 CCH OSHD?26,142 (No. 78-1353, 1982) (concurring and dissenting opinion) (OSHAstandards interpreted in light of their headings and subject mattor). Ifurther note, as did Commissioner Cottine, that section 10(c) of theAct, 29 U.S.C. ?659(c), requires that the Commission’s rules provide\”affected employees or representatives of affected employees anopportunity to participate as parties . . . . \” (emphasis added). Othersections of the Act demonstrate that, when Congress intended rights tobe granted only to employee representatives as opposed to employeesthemselves, it so expressly provided. [[4\/]]Accordingly, I join Commissioner Cottine in overruling Babcock & Wilcoxto the extent that it holds that an affected employee who is a member ofa collective bargaining unit cannot elect party status even though itsauthorized representative for collective bargaining purposes has notelected party status. We hold that under Rule 22(c) the affectedemployee is only precluded from electing party status when thebargaining unit representative has elected to appear in the proceedingsbefore the Commission. [[4a\/]]In the case now before us, Local 2141 of the United Steelworkers ofAmerica did not elect party status or otherwise appear in thisproceeding and it is undisputed that Smith is an \”affected employee\”within the meaning of Rule 20(a). Therefore, Commissioner Cottine and Iconclude that the judge erred to the extent that she did not accordSmith full party status. [[5\/]]BThe next issue to be determined is whether the judge erred indisregarding Smith’s objections to the stipulation of facts that hadbeen agreed upon between and filed by the Secretary and Respondent. Iconclude that the judge did not err.In Mobil Oil Corp., supra, I recently concluded that an authorizedemployee representative that had elected party status had no standingunder the Act to object to the provisions of an abatement plan set forthin a settlement agreement that had been agreed upon between theSecretary and the employer. I observed that the Secretary’s decision toenter into a settlement agreement is an exercise of the prosecutorialdiscretion reserved to him under the Act, further noted that thedecisions of several United States Courts of Appeals had rejectedattempts by the Commission and affected employees to interfere with suchexercises of prosecutorial discretion, and continued as follows:In my opinion, the courts are precisely correct in recognizing that theprocedural right of employees to elect party status does not confer onthem the right to challenge the Secretary’s prosecutorial authority inCommission proceedings except on the specific issue of the abatement date.10 BNA OSHC at 1930, 1982 CCH OSHD at p. 33,044.Technically, the case now on review is distinguishable from Mobil OilCorp., In this case, employee objections were filed in response to aprovision contained in a stipulation of facts rather than in response toan abatement plan set forth in a settlement agreement. However, thisdistinction is inconsequential. The stipulation that under the terms ofthe cited standard Smith was entitled to abated by paying Smith thatamount. More importantly, the Secretary’s decision to \”settle\” whatotherwise would have been a disputed issue was no less an exercise ofprosecutorial discretion than his decision in Mobil Oil Corp. to settlea tested citation. Accordingly, because Smith’s objections did not go to\”the specific issue of the abatement date,\” I conclude that he had no\”right to challenge the Secretary’s prosecutorial authority.\” Id.For the reasons stated in his separate opinion, Commissioner Cleary alsoconcludes that Judge Hassenfeld did not err in disregarding Smith’sobjections. Accordingly, the Commission holds that the judge properlybased her decision and order on the stipulation of facts filed by theSecretary and Respondent.IIIThe remaining issue before the Commission is whether the judge erred inclassifying the violation as repeated. In Potlatch Corp., 79 OSAHRC6\/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ?23,294 (No. 16183, 1979), theCommission held that \”[a] violation is repeated under section 17(a) ofthe Act if, at the time of the alleged repeated violation, there was aCommission final order against the same employer for a substantiallysimilar violation.\” 7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28,171.Consistent with this requirement, the Commission has in other casesvacated allegations that a violation is repeated because of theSecretary’s failure to prove that the earlier citation upon which herelied became a final order of the Commission prior to the date of thealleged violation then under review. See, e.g., Dic- Underhill, 80OSAHRC 109\/A2, 8 BNA OSHC 2223, 1980 CCH OSHD ?24,959 (No. 10789, 1981);Otis Elevator Co., 80 OSAHRC 14\/A2, 8 BNA OSHC 1019, 1980 CCH OSHD?24,236 (No. 14899, 1980), appeal withdrawn, No. 80-4070 (2d Cir. May13, 1980).In this case, the record establishes that the repeated allegation isbased on an antecedent citation that was not a final order of theCommission at the time of the instant violation. That prior citationcannot serve as a basis for finding that the violation before us wasrepeated within the meaning of section 17(a) of the Act. Therefore, theCommission finds that the judge erred in affirming the violation asrepeated.Accordingly, the Commission affirms the judge’s decision and order tothe extent that it finds Respondent in violation of the Act for failureto comply with the standard at 29 C.F.R. ?1910.1025(k)(2)(i) and affirmsthe judge’s assessment of a penalty of $200.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983 ————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ) , telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386) FOOTNOTES:[[1\/]] The rule states:?2200.22 Representatives of parties and intervenors.* * *(c) Affected employees who are represented by an authorized employeerepresentative may appear only through such authorized employeerepresentative.Commission Rule 1(g), 29 C.F.R. ?2200.1(g), defines \”Authorized employeerepresentative\” as \”a labor organization which has a collectivebargaining relationship with the cited employer and which representsaffected employees.\”[[2\/]] The rule states:?2200.21 Intervention; appearance by nonparties.* * *(c) The Commission or the judge may grant a petition for intervention tosuch an extent and upon such terms as the Commission or the judge shalldetermine.[[3\/]] The rule states:?2200.20 Party status* * * *(a) Affected employees may elect to participate as parties at any timebefore the commencement of the hearing before the judge, unless, forgood cause shown, the Commission or the judge allows such election at alater time. See also ?2200.21.[[4\/]] For example, 29 U.S.C. ?669(a)(6) provides that a determinationof whether a workplace contains potentially toxic substances must bemade upon the request of \”any employer or authorized representative ofemployees.\”[[4a\/]] However, I would limit this holding to the facts of this case,where the affected employee is a member of the union which representshim for collective bargaining purposes. I do not now decide whether anemployee in a state having a \”right-to-work\” law who chooses not to jointhe union which represents his collective bargaining unit would beprecluded from electing party status before the Commission if therepresentative of the bargaining unit made an appearance.[[5\/]] Commissioner Cottine also directed review on whether the judgeerred in limiting Smith’s intervention to the submission of comments forinformational purposes only. In view of our conclusion that Smith wasentitled to participate as a party under Commission Rule 20, itnecessarily follows that the judge erred in relying on Commission Rule21 regarding intervention as a basis for limiting the scope of Smith’sparticipation.”