Canton Elevator & Manufacturing Co.

Plain-English summary

Canton Elevator contested only the proposed penalties. The Secretary agreed to reduce two $100 penalties to $50 each, producing a total settlement penalty of $150, and the company withdrew its contest. The Commission affirmed the settlement under precedent holding that workplace posting gave adequate notice when no employee or representative had elected party status. Commissioner Cleary followed that precedent but continued to favor direct service on the authorized employee representative.

Decision snapshot

• Cited standard(s): Not stated in the public release
• Outcome: The citation was affirmed, the notice of contest was withdrawn, and total penalties were reduced to $150.
• Key point: Under the controlling Commission precedent at the time, posting a settlement at the worksite provided adequate notice when no employee representative had become a party.

Full text (OSHRC public release)

Docket No. 5193

CANTON ELEVATOR & MANUFACTURING CO.
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OSHRC Docket No. 5193

Occupational Safety and Health Review Commission

May 23, 1975

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[*1]
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Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

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BY THE COMMISSION: This matter is before the Commission for review of a February 15, 1974, order of Judge Ben D. Worcester pursuant to 29 U.S.C. �
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661(i).
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At issue is whether the Judge erred in approving a settlement agreement without evidence that the agreement had been served by mail or personal delivery on the authorized employee representatives.

In
Secretary v. Marine Terminals Corporation,
15 OSAHRC 172 (1975), the Commission, with Commissioner Cleary dissenting, held that posting of a settlement agreement at the worksite constituted adequate notice to employees and their representatives when no employee or employee representative had elected party status.
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That decision is dispositive of the directed issue in the instant case.
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Accordingly, the Judge's order is affirmed.

Commissioner Cleary agrees to dispose of this case on the basis of the precedent established in
Marine Terminals
because the settlement agreement involved only a relatively small change in the penalties initially proposed by the complainant and does not warrant delaying a decision in this already old case until a third member is appointed
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[*2]
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to the Commission.
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Commissioner Cleary continues to adhere to the view that the Commission should require evidence that a settlement agreement has been served on the authorized employee representative and permit a reasonable time thereafter for him to object to the agreement before acting thereon.
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His views are expressed in detail in his separate opinions in
Secretary v. Wheeling-Pittsburgh Steel Corp.,
11 OSAHRC 808, 810 (1974), and
Secretary v. Newspaper Agency Corporation,
8 OSAHRC 210, 212 (1974).

[The Judge's decision referred to herein follows]

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WORCESTER, JUDGE: The Respondent, by timely notice of contest, has put in issue the reasonableness of the proposed penalty embodied in a notice dated October 18, 1973, the Complainant has moved to amend by deleting proposed penalties of $100.00 each in Items 1 and 2 of the violation once proposing in lieu thereof a penalty of $50.00 each reducing the total penalty to $150.00.

The Respondent has conceded that the proposed penalty as modified is reasonable.
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The Respondent has complied with all of the requirements for service of notice upon affected employees and to pay the penalty as modified.

It is therefore hereby [*3]
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ordered that the Respondent's motion to withdraw its notice of contest be granted; that the citation be affirmed and that the Respondent be assessed a penalty of $150.00.

The Respondent's notice of contest is dismissed.
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