ITT Thompson Industries, Inc.

Plain-English summary

The Secretary and ITT Thompson Industries settled serious, repeated, and willful machine-guarding and housekeeping citations, but an administrative error excluded the authorized employee representative from the negotiations and initial review of the agreement. After review was directed, union counsel stated that the employee representative had no objection. The Commission affirmed the settlement, emphasizing that employees who elect party status must receive a meaningful opportunity to participate. Commissioner Barnako concurred but cautioned that employees have limited standing to challenge some settlement terms.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.217(d)(9)(iv), 1910.22(a)(2), 1910.217(e)(1)(ii), 1910.217(e)(3), and 1910.217(f)(2)
• Outcome: The settlement was affirmed. Item 2(b) was vacated, item 2(a) was reclassified from willful to serious, the remaining citations were affirmed, and penalties totaling $4,450 were assessed.
• Key point: An authorized employee representative that elects party status must have a meaningful opportunity to participate in the settlement process.

Full text (OSHRC public release)

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EN-US
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NOS. 77-4174 & 77-4175

ITT THOMPSON INDUSTRIES, INC.,
RESPONDENT, and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, and its Local 1635 AUTHORIZED
EMPLOYEE REPRESENTATIVE,

�������������� ������������������������������� Respondent.

August 17, 1978

ORDER

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

BY THE COMMISSION:

����������� On May 15, 1978, the Order Approving Settlement of the
Parties issued by Commission Judge James D. Burroughs was directed for review
under section 12(j) of the Occupational Safety and Health Act of 1970, 29
U.S.C. � 651 et seq. In a Statement of Issues on Review, the parties were
advised that the issue to be considered was whether the Authorized Employee
Representative was served with the proposed settlement agreement in accordance
with Commission Rules and the Administrative Law Judge�s order granting party
status. The parties were also invited to supply evidence demonstrating that the
Authorized Employee Representative had in fact been served with a copy of the
proposed agreement and had an opportunity to consider its provisions.

����������� By motion received June 15, 1978, and served on the
Respondent and the Authorized Employee Representative, Complainant moves the
Commission to affirm Judge Burroughs� order. Complainant states that because of
an administrative error the Authorized Employee Representative neither
participated in the settlement negotiations nor had the opportunity to comment
on the settlement agreement prior to its submission. Complainant also
represents that it has contacted Paul Heldman, Esq., counsel for International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
America and its Local 1635. Mr. Heldman was authorized to state that the
Authorized Employee Representative has no objection to the settlement agreement
as approved by Judge Burroughs. No other party has filed a response to
Complainant�s motion in the time provided under Commission Rule 37, 29 C.F.R. �
2200.37.

����������� In his motion, �Complainant reaffirms his position that
an election of party status by an authorized employee representative entitles
said representative to meaningful participation in the settlement process.�
Complainant�s position is consistent with that of the Commission. One of our
concerns in reviewing settlement agreements is that affected employees and
their representatives have been notified and afforded an opportunity to be
heard. American Airlines, Inc., 75 OSAHRC 43/F3 (microfiche), 2 BNA OSHC
1391, 1974�75 CCH OSHD �19,108 (No. 6087, 1974); Davies Can Co ., 76 OSAHRC
56/D8 (microfiche), 4 BNA OSHC 1237, 1976�77 CCH OSHD �20,704 (No. 8182, 1976).
The Commission Rules of Procedure specifically provide for notice by requiring
that proposed settlement agreements be served upon represented and
unrepresented affected employees. Commission Rule 100(c), 29 C.F.C. �
2200.100(c). Furthermore, where affected employees have indicated an intent to
participate in a proceeding by exercising their statutory right to elect party
status, 29 U.S.C. � 659(c), it is the duty of the Commission judge, [1] as well as the Secretary
and the employer, [2]
to ensure an opportunity for meaningful employee participation.

����������� Here, on the basis of Complainant�s representation on
behalf of the Authorized Employee Representative and the lack of any record
objections, we conclude that the parties are in agreement with respect to the
settlement of this matter.

����������� The Judge�s Order Approving Settlement of the Parties is
AFFIRMED.

�

It is so ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: August 17, 1978

BARNAKO, Commissioner,
Concurring:

����������� I concur in the order approving the settlement agreement,
and I agree that employees or their representative are entitled to the
opportunity to participate in the formulation of such an agreement. In my
opinion, however, the issues which employees have standing to raise in our
proceedings are limited. See Southern Bell Telephone and Telegraph Co .,
77 OSAHRC 83/D1, 5 BNA OSHC 1405, 1977�78 CCH OSHD para. 21,480 (No. 10340,
1977) (Employees have no standing to object to withdrawal of citation by
Secretary); Local 588, United Auto workers (Ford Motor Co. ), 76 OSAHRC
58/B8, 5 BNA OSHC 1243, 1976�77 CCH OSHD para. 20,737 (No. 2785, 1976), aff�d,
557 F.2d 507 (8th Cir. 1977) (Employees cannot dispute sufficiency of abatement
plan). To the extent that the lead opinion�s reference to �meaningful employee
participation� might be read to imply that employees have broad rights in
settlement negotiations, I do not agree with the implication.

SECRETARY
OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NOS. 77-4174 & 77-4175

ITT THOMPSON INDUSTRIES, INC.,
RESPONDENT, and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, and its Local 1635 AUTHORIZED
EMPLOYEE REPRESENTATIVE,

���������������������������������������������
Respondent.

April 14, 1978

ORDER
APPROVING SETTLEMENT OF THE PARTIES

����������� Respondent, by
letters dated December 7, 1977, timely contested several citations issued to it
on November 16 and 17, 1977. The following citations were issued to respondent
on November 16, 1977, alleging the violations stated and proposing penalties as
indicated:

Citation

Citation No.

Standard Allegedly Violated

Proposed Penalty

Serious

1

29 C.F.R. �1910.217(d)(9)(iv)

$ 700.00

repeated

2

29 C.F.R. � 1910.22(a)(2)

$2,00.00

����������� The citations issued on November 16, 1977, were docketed
as case number 77�4175.

����������� On November 17, 1977, respondent was issued a willful
citation which alleged the following violations and proposed the penalties
indicated:

Item No.

Standard Allegedly Violated

Proposed Penalty

1

29 C.F.R.�
1910.217(e)(l)(ii)

$7,000.00

1 2a

29 C.F.R.
� 1910.217(e)(3)

$7000.00

2b

29C.F.R.�
1910.217(f)(2)

Included
above

����������� The willful citation was docketed as case number 77�4174.

����������� Prior to the scheduled hearing, the parties advised that
all matters in dispute had been amicably resolved. On April 13, 1978, a
stipulation and settlement agreement was received from the parties. The
settlement agreement having been read and considered, it is

����������� ORDERED:

����������� 1. That the agreement is approved and incorporated as a
part of this order;

����������� 2. That item 2b of the willful citation issued to
respondent on November 17, 1977, is vacated and item 2a is modified to allege a
serious violation in lieu of a willful violation;

����������� 3. That item one of the willful citation issued in docket
number 77�4174 is affirmed;

����������� 4. That the following penalties are assessed for the
violations affirmed in docket number 77�4174:

Item No.

Assessed Penalty

1

$3,500

2a

$ 100

����������� 5. That the serious citation issued to respondent on
November 16, 1977, and docketed as case number 77�4175 is affirmed and a
penalty of $350.00 is assessed for the violation; and

����������� 6. That the repeated citation issued to respondent on
November 16, 1977, and docketed as case number 77�4175 is affirmed and a
penalty of $500.00 is assessed.

Dated this 14th day of April
1978.

JAMES D. BURROUGHS

Judge

[1]
Administrative
Procedure Act, 5 U.S.C. � 556(c)(9) (1977); Commission Rules 20(a) and 66(m),
29 C.F.R. �� 2200.20(a) and 66(m).

[2]
Commission
Rules 7, 20(a), 100(c), 102; 29 C.F.R. �� 2200.7, 2200.20(a), 2200.100(c),
2200.102.