Otis Elevator Company

Plain-English summary

Otis Elevator Company received a three-item nonserious citation with $155 in proposed penalties. Under a settlement, the Secretary withdrew item 2 and its $35 penalty because he believed the evidence was insufficient. Otis withdrew its contest to item 3, while item 1 had not been contested, leaving $120 in total penalties. The settlement was posted but was not initially served on the authorized union representative as Commission rules required. After review began, the employer served the agreement, and the union did not request a hearing. The Commission found that further proceedings would serve no useful purpose and affirmed the amended citation and penalty.

Decision snapshot

• Cited standard(s): None identified in the official release.
• Outcome: The settlement was affirmed with items 1 and 3 upheld, item 2 withdrawn, and total penalties of $120.
• Key point: Later service on the authorized employee representative, followed by no hearing request, made further settlement proceedings unnecessary.

Full text (OSHRC public release)

Docket No. 4502

OTIS ELEVATOR COMPANY

OSHRC Docket No. 4502

Occupational Safety and Health Review Commission

July 22, 1974

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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

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CLEARY, COMMISSIONER: On February 27, 1974, Judge David G. Oringer issued his decision and order in this case approving a stipulated settlement agreement executed by the parties.

On March 26, 1974, the Commission directed review of the decision and order of the Judge in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. �
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651
et seq.,
hereinafter referred to as "the Act").
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Submissions were invited on the issue of whether the stipulated settlement agreement had been posted and served on the authorized employee representative.

The Commission has reviewed the entire record in this case.
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We adopt the Judge's decision to the extent that it is consistent with the following.

On August 23, 1973, the Secretary issued to respondent one citation for non-serious violation together with a notification that a penalty of $155 was proposed.
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On September 6, 1973, respondent timely filed a notice of contest as to items 2 and 3 and the penalties proposed for these items.
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After a complaint and answer were filed, complainant and respondent executed a stipulated settlement agreement [*2]
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in which the complainant moved to withdraw the citation as to item 2 and respondent moved to withdraw its notice of contest as item 3.

The stipulated settlement agreement was posted, but it was not served on the authorized employee representative,
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International Union of Elevator Constructors, Local No. 1.

Commission Rule 100(c) [29 CFR �
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2200.100(c)] states the following concerning service on representatives of affected employees:

Rule 100 Settlement

(c) Where the parties to settlement agree upon a proposal, it shall be served upon represented
and
unrepresented affected employees in the manner set forth in rule 7 hereof.
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Proof of such service shall accompany the proposed settlement when submitted to the Commission or the judge.
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[Emphasis added]

Commission Rule 7(d) [29 CFR 2200.7(d)] states the following:

Rule 7 Service and Notice

(d) Proof of service shall be accomplished by a written statement of the same which sets forth the date and manner of service.
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Such statement shall be filed with the pleading or document.

Subsequent to the Commission's direction for review, respondent's attorney notified the Commission by letter dated April 5, 1974, that a copy [*3]
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of the stipulated settlement agreement had been served on the authorized employee representative. Although the quoted rules contemplate an opportunity to be heard on settlements before the Commission approves them, the authorized employee representative has not requested a hearing as of this date.
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Further proceedings would therefore serve no useful purpose.

Accordingly, it is ORDERED that the Judge's decision affirming the citation and proposed penalty as amended is affirmed.

[The Judge's decision referred to herein follows]

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ORINGER, JUDGE, OSAHRC: This is a proceeding by the Secretary of Labor under the Occupational Safety and Health Act of 1970, 29 USC 651
et seq.,
(hereinafter referred to as "the Act") to review a Citation issued by the Secretary of Labor (hereinafter referred to as "Complainant") pursuant to Section 9(a), and a proposed assessment of penalties thereon issued pursuant to Section 10(a) of the Act.

The record reveals that a Citation alleging three "nonserious" violations was issued against the Respondent on or about August 23, 1973, after an inspection that was conducted from July 25th through August 17, 1973.
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On even date, to wit, August 23,
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1973, Notification of Proposed Penalty was issued against the Respondent proposing to assess a penalty against it for Item 1 of the Citation in the sum of $85.00, proposing to assess a penalty of $35.00 for Item 2 thereof of the Citation and proposing to assess a penalty of $35.00 for Item 3 thereof.
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On or about September 6, 1973, Complainant was sent a Notice of Contest by the Respondent in the form of a letter from Mr. H. J. Friedenreich, Safety Representative, North Eastern Construction in which document Respondent did not contest Item 1 thereof.

Subsequent thereto a Complaint was issued to the Respondent by the Complainant.
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Thereafter an answer to the Complaint in the nature of a letter signed by R. E. Malinowski the Representative, North Eastern Construction, was served upon the Respondent.

The case was originally set down for trial on the 7th day of February, 1974 at the Federal Trade Commission, 22nd floor, at 26 Federal Plaza, New York, New York.
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Thereafter at the request of both of the
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parties the case was adjourned to the 20th of February, 1974 for the purpose of the parties submitting a settlement agreement to the undersigned for approval inasmuch as the
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parties between themselves had agreed to settle the matter.
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The Complainant amended his Complaint deleting Item No. 2 inasmuch as he does not believe that there is sufficient evidence to establish the violation as alleged.
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The proposed penalty for Item No. 2 is similarly deleted leaving a total proposed penalty for Items 1 and 3 of the Citation in the sum of $120.00.
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Based on the Complainant's amendment of his Complaint deleting Item 2 thereof and the penalty proposed to be assessed therefore, the Respondent withdrew its Notice of Contest and Answer at to Item No. 3 of the Citation and the penalty proposed to be assessed therefore.
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The Respondent had not contested Item 1 of the Citation and the penalty proposed therefore in its Notice of Contest.

In addition thereto the Respondent affirmatively stated that all violations alleged in the Complaint have been abated; that it will comply in the future with the Occupational Safety and Health Act; that the stipulation will be posted where affected employees may see it; and that it will pay the amended proposed penalty of $120.00 to the Secretary.

Sufficient time having elapsed, I find in view of the forgoing, that the disposition of [*6]
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this case in accordance with the stipulated settlement is consonant with the purposes of the Act and congruent with the public interest; no further justiciable controversy appearing before me, the stipulated settlement is herewith approved, and the
de facto
motion to withdraw the Notice of Contest in accordance with the stipulated settlement
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is herewith granted, Item 3 of the Citation is affirmed, Item 1 is affirmed by operation of law and the total penalties of $120.00 are hereby herewith similarly affirmed.

SO ORDERED.
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