Western Electric Co., Inc. (Commission decision, November 22, 1978)

Plain-English summary

This is a two-sentence order. The Commission approved the parties' settlement
agreement of July 12, 1978, citing Aspro, Inc., Spun Steel Division and
Dawson Brothers Mechanical Contractors. Commissioner Cottine dissented at
length, and the dissent is the substance of the document.

Western Electric had been cited under the occupational noise standard, 29 C.F.R.
§ 1910.95, for exposing employees to excessive noise at three presses numbered 620-108, 620-120, and 620-124.

What Cottine objected to. Dawson Brothers sets prerequisites that must be met before the Commission can find a settlement consistent with the Act, among them that the record establish when abatement has been or will be accomplished. In Cottine's reading that obligates the parties offering a settlement to put record evidence behind the conclusion that the hazard is or will be abated. The parties here did not.

Paragraphs 2 and 3 of the agreement represent that abatement was achieved at
presses 620-108 and 620-124, but those are assertions with nothing in the
record supporting them, so the finding cannot be made. Cottine was explicit that the proof required is not burdensome. An affidavit attesting to the assertions would have sufficed.

Paragraph 4, covering press 620-120, is worse, because it contradicts itself.
It states that the press was relocated, that a full room type enclosure was
installed around it, and that the press has been brought into compliance. The
same paragraph then says the company will measure the noise level "after"
completion of that enclosure. Those two statements cannot both describe the
same state of affairs, so the paragraph does not establish whether abatement
has happened or is still to come, and it has no record support either way.

The APA point. Cottine also objected to the form of the approval. By citing
Dawson Brothers the majority implies a finding that the settlement is
consistent with the purposes of the Act without ever stating one. An implied
finding does not discharge an adjudicatory agency's obligation under section
8(b) of the Administrative Procedure Act, 5 U.S.C. § 557(c), to make specific
findings of fact and conclusions of law. If the Commission is going to conclude that a settlement serves the Act, it has to say so and say why.

He would not have approved the agreement on this record, but would have given
the parties the chance to supply the missing evidence and clear up the
contradiction.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95, occupational noise exposure
• Outcome: Settled. The July 12, 1978 settlement agreement is approved over
  Cottine's dissent.
• Key point: The majority treats settlement approval as near-automatic on a
  citation to precedent. The dissent argues that Dawson Brothers requires
  record evidence of abatement rather than the parties' own assertions, and that approving by implication rather than by stated findings does not satisfy the APA. The disagreement is about how much scrutiny a settlement gets, not about the noise standard.

Full text (OSHRC public release)

Docket No. 15362

WESTERN ELECTRIC CO., INC.
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OSHRC Docket No. 15362

Occupational Safety and Health Review Commission

November 22, 1978

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
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COUNSEL:

Baruch A. Fellner, Officer of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Raymond A. Ledogar, Western Electric Company, Inc., for the employer

Edwin M. Noga, Western Electric Company, Inc., for the employer

OPINION:

ORDER

BY THE COMMISSION:

The parties' settlement agreement of July 12, 1978, is approved.
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Aspro, Inc., Spun Steel Division (No. 78-1381, September 15, 1978); Dawson Bros. Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971-73 CCH OSHD para. 15,039 (No. 12, 1972).
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DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

My colleagues imply that their approval of the settlement agreement is consistent with the Commission decision in Dawson Brothers Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971-73 CCH OSHD P15,039 (No. 12, 1972).
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I disagree.
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Dawson Brothers sets forth several prerequisites that must be satisfied before the Commission is able to determine whether a settlement agreement is consistent with the provisions and objectives of the Act.
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Among other things, Dawson Brothers requires that the record establish the date when abatement [*2]
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has been or will be accomplished. In my view, this requirement must be interpreted to impose on parties offering a settlement the obligation to provide record evidence that supports the conclusion that a cited hazard has been or will be abated.

In this case, the parties have failed to satisfy this burden of proof.
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Western Electric was cited for a violation of the occupational noise standard, 29 C.F.R. �
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1910.95.
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The citation alleged that the Respondent's employees were exposed to excessive noise levels at presses 620-108, 620-120, and 620-124.
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Paragraphs 2 and 3 of the settlement agreement represent that abatement has been achieved with respect to presses 620-108 and 620-124.
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However, these factual assertions are without record support and thus the requisite findings of abatement cannot be made.
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The method of proving the asserted facts need not be elaborate.
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An affidavit attesting to the veracity of these assertions would have been sufficient.
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Furthermore, the record fails to support a conclusion that the Respondent has abated the excessive noise levels emanating from press 620-120.
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Paragraph 4 of the settlement agreement initially states that the Respondent has relocated [*3]
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press 620-120, that it has installed a full room type enclosure around the press, and that the press has been brought into compliance with �
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1910.95.
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However, the same paragraph continues with the assertion that the Respondent will measure the noise level of the press "after" completion of the full room type enclosure. The factual assertions made in paragraph 4 are internally inconsistent with respect to whether abatement has been accomplished or will be accomplished at some future date.
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In addition, this paragraph is not supported by record evidence. Clearly, no finding of abatement at press 620-120 can be rendered.

Moreover, I must disagree with the manner in which my colleagues have entered their approval of the settlement agreement. By suggesting that the proposed agreement is consistent with Dawson Brothers, the majority presumably implies that the settlement agreement is consistent with the purposes and objectives of the Act.
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However, an implied finding does not satisfy the obligation of an adjudicatory agency to render specific findings of fact and conclusions of law as required by section 8(b) of the Administrative Procedure Act, 5 U.S.C. �
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557(c).
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If the Commission [*4]
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is to properly conclude that a settlement is consistent with the purposes of the Act, the APA requires the Commission to explicitly state that conclusion and to set forth the specific findings of fact supporting the conclusion.

On the basis of the present record, I would not approve the settlement agreement. I would, however, afford the parties the opportunity to provide the necessary record evidence and clarification with respect to abatement.