“Docket No. 80-2425 SECRETARY OF LABOR,Complainant,v.UNITED STATES STEEL CORP.,Respondent.ROY LEE SMITH,Intervenor.OSHRC Docket No. 80-2425DECISION Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners. ROWLAND, Chairman:The issues before us in this case are whether Administrative Law Judge Barbara L.Hassenfeld erred in (1) approving a settlement agreement between the Secretary andRespondent despite the claim by an affected employee that the agreement did not requireRespondent to pay the full amount of medical removal protection benefits due him under 29C.F.R. ?1910.1025(k)(2)(i) and (2) classifying the violation of that standard as repeatedin nature. For the reasons that follow, we conclude that the judge did not err indisregarding the employee’s claim but that the violation was not shown to be repeated innature.IThe Respondent, United States Steel Corp., operated a manufacturing facility in New Haven,Connecticut, that was inspected by an Occupational Safety and Health Administration(\”OSHA\”) compliance officer. As a result of that inspection, the Secretary ofLabor (\”the Secretary\”) issued a citation to Respondent alleging a repeatedviolation of the Occupational Safety and Health Act, 29 U.S.C. ??651-678, in thatRespondent failed to comply with 29 C.F.R. ?1910.1025(k)(2)(1), a standard requiring theprovision of medical removal protection (MRP) benefits to employees who are removed fromtheir jobs due to exposure to lead. Roy Lee Smith, the employee who allegedly did notreceive MRP benefits from Respondent, sought to intervene in the proceeding. Since Smithwas at the time of the alleged violation an employee in a bargaining unit represented bythe United Steelworkers of America, Local 2141, which has not made any appearance in thiscase, both the Secretary and Respondent opposed Smith’s petition for intervention on theground that Smith’s participation in this proceeding is precluded under Commission Rule ofProcedure 22(c), 29 C.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 the extent of the employee’sparticipation. These limitations were warranted, in the judge’s view, on the ground thatRule 22(c) required that the employee \”be represented by his union if he wishes tofully intervene.\”The case was subsequently submitted to Judge Hassenfeld for a decision on the merits basedon a stipulation of facts in lieu of an evidentiary hearing.Included in the stipulationwas an agreement by the parties that under the terms of the cited standard Roy Lee Smithwas entitled to medical removal protection benefits in the amount of $973.27. Thestipulation also stated that the contested violation was alleged to be repeated because acitation alleging a violation of the same standard previously had been issued toRespondent. That prior citation, which had also been contested, was then pending beforeAdministrative Law Judge Foster Furcolo in OSHRC Docket No. 80-749.In her decision, Judge Hassenfeld found, based on the stipulated facts, that Respondenthad failed to comply with the cited standard. Furthermore, she concluded that theviolation before her was repeated because she had been advised that the parties had fileda stipulation in Docket No. 80-749 providing for affirmance of the citation in issue inthat case.In accordance with Judge Hassenfeld’s prior order granting Smith a limited right ofintervention, Smith had been given the opportunity to file comments on the parties’stipulation of facts \”for informational purposes only.\” Smith had filedextensive comments challenging the agreement of the parties concerning the amount of MRPbenefits he was entitled to under the cited standard. In her decision affirming thealleged violation, the judge did not consider Smith’s objections to the parties’stipulation.IIAUnder Commission Rule 20(a),[[3\/]] affected employees may elect to participate as partiesin Commission proceedings. In Babcock & Wilcox Co., 80 OSAHRC 95\/A2, 8 BNA OSHC 2102,1980 CCH OSHD ?24,812 (No. 78- 446, 1980), a divided Commission held that an individualwho was an \”affected employee\” within the meaning of the Commission’s rulescould not elect party status because he was a member of a union that was an\”authorized employee representative\” within the meaning of the Commission’srules. The majority reached this conclusion notwithstanding the fact that the union hadnot elected party status or otherwise been involved in any other manner in theCommission’s proceedings. It based its holding on what it asserted were \”the clearterms of Rule 22(c),\” thereby implicitly interpreting the term\”represented\” as it is used in that rule as meaning represented for purposes ofcollective bargaining.Commissioner Cottine dissented from the majority’s interpretation of Commission Rule22(c). In essence, he concluded that the term \”represented,\” as it is used inthat rule, refers to representation in a proceeding before the Commission rather thanrepresentation in collective bargaining with the employer. Thus, he stated:The proper interpretation of this rule . . . is that a member of a collective bargainingunit is prevented from appearing only when actually represented by tile union in ourproceedings. If the union does not enter an appearance, affected employees who are membersof a collective bargaining unit should be permitted to appear in the same manner asaffected employees who do not have a collective bargaining agent.(Emphasis supplied by Commissioner Cottine; footnote omitted.) Id., 8 BNA OSHC at 2109,1980 CCH OSHD at p. 30,569.After carefully considering the positions of both the majority and the dissentingCommissioner in Babcock & Wilcox, I conclude that that case was erroneously decided. Ido not, however, agree with all of the reasoning of the dissenting opinion in that case.Indeed, much of that reasoning is inconsistent with my own views as expressed mostrecently in Mobil Oil Corp., 82 OSAHRC __, 10 BNA OSHC 1905, 1982 CCH OSHD ?26,187 (No.77-4386, 1982) (dissenting opinion). Nevertheless, I conclude that Commissioner Cottine’sinterpretation of Commission Rule 22(c) is correct. The caption of Rule 22 is\”Representatives of parties and intervenors\” and the subject matter of theentire rule is the representation of parties and intervenors in Commission proceedings.These facts strongly support the view that the term \”represented\” as it is usedin 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) (concurringand dissenting opinion) (OSHA standards interpreted in light of their headings and subjectmattor). I further note, as did Commissioner Cottine, that section 10(c) of the Act, 29U.S.C. ?659(c), requires that the Commission’s rules provide \”affected employees orrepresentatives of affected employees an opportunity to participate as parties . . . .\” (emphasis added). Other sections of the Act demonstrate that, when Congressintended rights to be granted only to employee representatives as opposed to employeesthemselves, it so expressly provided. [[4\/]]Accordingly, I join Commissioner Cottine in overruling Babcock & Wilcox to the extentthat it holds that an affected employee who is a member of a collective bargaining unitcannot elect party status even though its authorized representative for collectivebargaining purposes has not elected party status. We hold that under Rule 22(c) theaffected employee is only precluded from electing party status when the bargaining unitrepresentative has elected to appear in the proceedings before the Commission. [[4a\/]]In the case now before us, Local 2141 of the United Steelworkers of America did not electparty status or otherwise appear in this proceeding and it is undisputed that Smith is an\”affected employee\” within the meaning of Rule 20(a). Therefore, CommissionerCottine and I conclude that the judge erred to the extent that she did not accord Smithfull party status. [[5\/]]B The next issue to be determined is whether the judge erred in disregarding Smith’sobjections to the stipulation of facts that had been agreed upon between and filed by theSecretary and Respondent. I conclude that the judge did not err.In Mobil Oil Corp., supra, I recently concluded that an authorized employee representativethat had elected party status had no standing under the Act to object to the provisions ofan abatement plan set forth in a settlement agreement that had been agreed upon betweenthe Secretary and the employer. I observed that the Secretary’s decision to enter into asettlement agreement is an exercise of the prosecutorial discretion reserved to him underthe Act, further noted that the decisions of several United States Courts of Appeals hadrejected attempts 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 the procedural rightof employees to elect party status does not confer on them the right to challenge theSecretary’s prosecutorial authority in Commission proceedings except on the specific issueof 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 Oil Corp., In this case,employee objections were filed in response to a provision contained in a stipulation offacts rather than in response to an abatement plan set forth in a settlement agreement.However, this distinction is inconsequential. The stipulation that under the terms of thecited standard Smith was entitled to abated by paying Smith that amount. More importantly,the Secretary’s decision to \”settle\” what otherwise would have been a disputedissue was no less an exercise of prosecutorial discretion than his decision in Mobil OilCorp. to settle a 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 also concludes thatJudge Hassenfeld did not err in disregarding Smith’s objections. Accordingly, theCommission holds that the judge properly based her decision and order on the stipulationof facts filed by the Secretary and Respondent.III The remaining issue before the Commission is whether the judge erred in classifying theviolation as repeated. In Potlatch Corp., 79 OSAHRC 6\/A2, 7 BNA OSHC 1061, 1979 CCH OSHD?23,294 (No. 16183, 1979), the Commission held that \”[a] violation is repeated undersection 17(a) of the Act if, at the time of the alleged repeated violation, there was aCommission final order against the same employer for a substantially similarviolation.\” 7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28,171. Consistent with thisrequirement, the Commission has in other cases vacated allegations that a violation isrepeated because of the Secretary’s failure to prove that the earlier citation upon whichhe relied became a final order of the Commission prior to the date of the allegedviolation then under review. See, e.g., Dic- Underhill, 80 OSAHRC 109\/A2, 8 BNA OSHC 2223,1980 CCH OSHD ?24,959 (No. 10789, 1981); Otis Elevator Co., 80 OSAHRC 14\/A2, 8 BNA OSHC1019, 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 is based on anantecedent citation that was not a final order of the Commission at the time of theinstant violation. That prior citation cannot serve as a basis for finding that theviolation before us was repeated within the meaning of section 17(a) of the Act.Therefore, the Commission finds that the judge erred in affirming the violation asrepeated.Accordingly, the Commission affirms the judge’s decision and order to the extent that itfinds Respondent in violation of the Act for failure to comply with the standard at 29C.F.R. ?1910.1025(k)(2)(i) and affirms the judge’s assessment of a penalty of $200. SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983\u00a0The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ) , telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386)\u00a0FOOTNOTES: [[1\/]] The rule states:?2200.22 Representatives of parties and intervenors. * * *(c) Affected employees who are represented by an authorized employee representative mayappear only through such authorized employee representative.Commission Rule 1(g), 29 C.F.R. ?2200.1(g), defines \”Authorized employeerepresentative\” as \”a labor organization which has a collective bargainingrelationship with the cited employer and which represents affected employees.\”[[2\/]] The rule states:?2200.21 Intervention; appearance by nonparties. * * *(c) The Commission or the judge may grant a petition for intervention to such an extentand upon such terms as the Commission or the judge shall determine.[[3\/]] The rule states:?2200.20 Party status* * * *(a) Affected employees may elect to participate as parties at any time before thecommencement of the hearing before the judge, unless, for good cause shown, the Commissionor the judge allows such election at a later time. See also ?2200.21.[[4\/]] For example, 29 U.S.C. ?669(a)(6) provides that a determination of whether aworkplace contains potentially toxic substances must be made upon the request of \”anyemployer or authorized representative of employees.\” [[4a\/]] However, I would limit this holding to the facts of this case, where the affectedemployee is a member of the union which represents him for collective bargaining purposes.I do not now decide whether an employee in a state having a \”right-to-work\” lawwho chooses not to join the union which represents his collective bargaining unit would beprecluded from electing party status before the Commission if the representative of thebargaining unit made an appearance.[[5\/]] Commissioner Cottine also directed review on whether the judge erred in limitingSmith’s intervention to the submission of comments for informational purposes only. Inview of our conclusion that Smith was entitled to participate as a party under CommissionRule 20, it necessarily follows that the judge erred in relying on Commission Rule 21regarding intervention as a basis for limiting the scope of Smith’s participation.”