Blaisdell Manufacturing, Inc.

Plain-English summary

Blaisdell Manufacturing entered a settlement covering two serious citations under the Occupational Safety and Health Act. The Commission affirmed the vacation of citation 2 because the Secretary said he could not produce enough evidence to prove it. It set aside approval of citation 1 because the settlement broadly stated that Blaisdell admitted no violation and could prevent the violation from being used in a future proceeding under the Act. The Commission remanded the case and gave the parties 10 days to delete that clause or state that they intended to proceed to a hearing. If they did neither, the notice of contest would be dismissed and the original $750 proposed penalty would be affirmed, rather than the $550 settlement amount.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 U.S.C. § 654(a)(2)
• Outcome: Citation 2 was vacated, and citation 1 was remanded for revision of the settlement or a hearing, with the original $750 penalty to be affirmed if the parties did not comply.
• Key point: A settlement could disclaim liability outside the Act, but it could not deny the final-order effect of an OSH Act violation in future Commission proceedings.

Full text (OSHRC public release)

Docket No. 1566

BLAISDELL MANUFACTURING, INC.
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OSHRC Docket No. 1566

Occupational Safety and Health Review Commission

November 14, 1973

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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

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VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge Robert N. Burchmore.
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Judge Burchmore affirmed Complainant's citation for serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651
et seq.,
hereinafter "the Act") (citation 1), assessed a penalty of $550 therefor, and vacated Complainant's amended citation for serious violation of section 5(a)(1) of the Act (citation 2).
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The Judge's order was issued in accordance with the terms of a settlement agreement executed between the parties on February 21, 1973.

Upon review of the record, we note that Complainant stated that he would be unable to adduce evidence sufficient to prove the allegations of citation 2.
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We therefore conclude that vacation of this citation is consistent with the provisions and objectives of the Act.
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Accordingly, we concur with the Judge's disposition of citation 2,

However, we do not agree that citation 1 should be affirmed in the circumstances of this case.
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The settlement agreement, in pertinent part, provides as follows:
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4.
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The parties in entering into this Settlement Agreement have done so with the intent and on the basis that it is determinative of and related solely to the settlement and complete disposition of this case.
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The parties further agree that as to subsequent acts or events this settlement and disposition in no way affects any rights or remedies which may be exercised in the future by either party
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pursuant to the Occupational Safety and Health Act. It is further agreed that neither Respondent's action in entering into this Settlement Agreement, abatement of the alleged violation, withdrawal [sic] of its Notice of Contest, nor payment of $550.00 shall be construed as an admission of fault or liability as to any nature of claim or proceeding whatsoever which exists or may arise, or be pursued by any person, agency, or entity; further, by entering into this Settlement Agreement and by performing in accordance with its terms, Respondent does not admit to any violation of the Occupational Safety and Health Act of 1970, or any regulation issued pursuant thereto.

The above-quoted language creates doubt as to whether the violation of section 5(a)(2) of the Act (citation 1) may
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be used against Respondent in a possible future proceeding before this Commission.
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In-
Secretary of Labor v. Matt J. Zaich Construction Company,
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That decision is controlling in this case.

For the reasons stated above, we approve that part of the settlement agreement pertaining to citation 2.
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That portion relating to citation 1 would comport with our requirements for hospitable consideration if paragraph 4 is deleted therefrom.

Accordingly, it is ORDERED that (1) the decision of the Judge vacating the citation, as amended, for serious violation of section 5(a)(1) of the Act (citation 2) be and the same is hereby affirmed; (2) that portion of the Judge's decision affirming the citation for serious violation of section 5(a)(2) of the Act (citation 1) be and the same is hereby set aside; (3) the case be remanded and the parties be given 10 days from the date of receipt of this decision to either conform the settlement agreement as indicated herein or indicate their
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intent to proceed to a hearing; and (4) the notice of contest as to citation 1 be dismissed and the citation and proposed civil penalty of $750 be affirmed in the event the parties do not comply with requirement (3) hereof.
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CONCURBY: CLEARY

CONCUR:

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CLEARY, COMMISSIONER, concurring: I have no objection to a stipulation between the parties that recites the fact that a settlement agreement before this Commission is not an admission of fault or liability as to any proceeding outside the purview of the Occupational Safety and Health Act.

The exculpatory language of paragraph four of the settlement agreement herein oversteps this criterion.
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I believe that a settlement agreement containing general exculpatory language must nevertheless indicate clearly that the citations and proposed penalties constitute a final order of the Commission and are deemed violations for the purposes of the Act.

DISSENTBY: MORAN

DISSENT:

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MORAN, CHAIRMAN, dissenting: The judge correctly decided this case and his decision should have been affirmed without modification.
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This attempt to make sure that a violation record will be available for use against this respondent in the event of possible future
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proceedings smacks of an evidence-gathering function.
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This is clearly a responsibility of the Secretary of Labor and not this Commission.
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The Secretary is satisfied with the stipulated settlement. So are all other parties.
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The case ought to be concluded on that basis.
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My views on dispositions of this kind are set forth more fully in
Secretary
v.
Thorleif Larsen & Son,

[The Judge's decision referred to herein follows]

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BURCHMORE, JUDGE, OSAHRC: By settlement agreement dated February 21, 1973, the parties have provided for an agreed disposition of two citations for serious violation of the Occupational Safety and Health Act of 1970 [29 U.S.C. 651]; the two violations comprise the entire subject of this proceeding.

After filing his complaint, the Secretary conducted further investigation of the circumstances underlying citation No. 2 and upon the basis of that investigation he has concluded that there was in fact no violation.
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Accordingly, he moves to withdraw the citation and proposed penalty. At the same time respondent moves to withdraw its notice of contest to citation No. 1
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and the parties have agreed to a modified proposed penalty in the amount of $550.
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Respondent has tendered payment of the agreed penalty and represents to the Commission that the violation has been abated and respondent is in continuing compliance with the Act.
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The settlement was served on the parties and posted in accordance with the rules of this Commission.
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A reasonable time has elapsed and no objection has been received thereto.
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Upon consideration of the entire record under all the circumstances, I find the motions and settlement to be consistent with the purpose and provisions of the Act.
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The motions are granted and the settlement is approved.

It is ORDERED that citation No. 1 is affirmed and a penalty of $550 is assessed therefor, citation No. 2 is vacated and this proceeding is hereby discontinued.
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