Connecticut Aerosols, Inc. (Commission decision, February 22, 1980)

Plain-English summary

Connecticut Aerosols received two citations in December 1977 alleging 38 serious and 7 nonserious violations, each with a specified abatement date. The company's notice of contest challenged only the proposed penalties on certain items. That choice mattered a great deal. Under section 10(a), an employer may contest the citation, the penalty, or both, and whatever is not contested becomes a final order of the Commission that no court or agency may review. Because only penalties were contested, the citations, including every abatement date, went final by operation of law.

The Commission considered whether to read the notice of contest generously as covering the citations too, which is its usual practice when an employer later shows that was its intent. It declined here. The notice was unambiguous, the company never indicated otherwise, the Secretary pleaded in the complaint that only penalties were contested and the company admitted it, and in settling the company admitted the violations.

The parties then filed a settlement that Administrative Law Judge Abraham Gold approved in December 1978. Two of its paragraphs overreached. One had the parties agree that the citation would become the final order of the Commission, which it already was, leaving nothing for the Commission to order. The other had the company certify that the violations "have been abated or will be abated by the time permitted by OSHA or as soon thereafter as practicable." The Commission held that this language cannot be approved, because the abatement dates were part of a final order and neither the Secretary nor the Commission can change an employer's obligations under a final order except through the statutory abatement date modification procedure. The dates in the citations had passed in March 1978 or earlier, months before the settlement was submitted.

Commissioner Cottine added a point about how the language got there. The original draft said simply that the violations "have been abated." The softer phrase was inserted by hand with the initials of a signatory for the company, with nothing showing the Secretary agreed to the change. He would not treat that as a term both sides bargained for.

Although the Commission had authority over other parts of the agreement, it declined to approve them piecemeal, since approving a settlement stripped of two of its terms might not reflect what the parties actually intended. It set aside the judge's approval order and remanded for further proceedings.

The case also restates the rule that a settlement agreement must state the date on which abatement has been or will be accomplished, a requirement dating to Dawson Brothers and now written into the Commission's rules of procedure effective January 1, 1980.

Decision snapshot

• Cited standard(s): none. This decision concerns the approval of a settlement agreement and adjudicates no standard.
• Outcome: Remanded. The judge's order approving the settlement is set aside and the case is sent back for further proceedings.
• Key point: Contesting only the penalty leaves the citation and its abatement dates a final order, and a settlement cannot loosen an abatement obligation that only the statutory modification procedure can change.

Full text (OSHRC public release)

Docket No. 78-25

1 of 202 DOCUMENTS

TURNER COMPANY

A. SCHONBEK & CO., INC.
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NORANDA ALUMINUM, INC.
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GENERAL MOTORS CORP., GM ASSEMBLY DIV.
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ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.
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CLEMENT FOOD COMPANY

MILLCON CORPORATION

FWA DRILLING COMPANY, INC.
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CCI, INC.
�

GENERAL ELECTRIC COMPANY

CONSOLIDATED ALUMINUM CORPORATION

THE BRONZE CRAFT CORPORATION

CARGILL, INC.
�

CHAPMAN CONSTRUCTION CO., INC.
�

GALLO MECHANICAL CONTRACTORS, INC.
�

SPECIAL METALS CORPORATION

WILLAMETTE IRON AND STEEL COMPANY

NASHUA CORPORATION

WESTINGHOUSE ELECTRIC CORPORATION

RESEARCH-COTTRELL, INC.
�

ROCKWELL INTERNATIONAL CORPORATION

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.
�

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.
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BUNKOFF CONSTRUCTION CO., INC.
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GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION

HARRIS BROTHERS ROOFING CO.
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GENERAL DIVERS COMPANY

ORMET CORPORATION

R. ZOPPO CO., INC.
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COEUR D'ALENE TRIBAL FARM

L. A. DREYFUS COMPANY

CMH COMPANY, INC.
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BENTON FOUNDRY, INC.
�

MICHAEL CONSTRUCTION CO., INC.
�

WHIRLPOOL CORPORATION

BROWN & ROOT, POWER PLANT DIVISION

MARION POWER SHOVEL CO., INC.
�

ERSKINE-FRASER CO.
�

MORRISON-KNUDSEN AND ASSOCIATES

THE BOAM COMPANY

DIC-UNDERHILL, a Joint Venture

C. R. BURNETT AND SONS, INC.; HARLLEE FARMS

STRIPE-A-ZONE, INC.
�

FORTE BROTHERS, INC.
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RAYBESTOS FRICTION MATERIALS COMPANY

TEXLAND DRILLING CORPORATION

THE ANACONDA COMPANY, WIRE AND CABLE DIVISION

SAM HALL & SONS, INC.
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VAMPCO METAL PRODUCTS, INC.
�

LEONE INDUSTRIES, INC.
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ASARCO, INC.
�

DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY

PLUM CREEK LUMBER COMPANY

PLUM CREEK LUMBER COMPANY

STEARNS-ROGER, INC.
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FERRO CORPORATION, (ELECTRO DIVISION)

AMERICAN PACKAGE COMPANY, INC.
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BROWN & ROOT, INC., POWER PLANT DIVISION

FLEETWOOD HOMES OF TEXAS, INC.
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DONALD HARRIS, INC.
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A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.
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ELECTRICAL CONSTRUCTORS OF AMERICA, INC.
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DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)

ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY

NAVAJO FOREST PRODUCTS INDUSTRIES

METROPAK CONTAINERS CORPORATION

AUSTIN BUILDING COMPANY

BABCOCK AND WILCOX COMPANY

DARRAGH COMPANY

BABCOCK & WILCOX COMPANY

OTIS ELEVATOR COMPANY

R. ZOPPO COMPANY, INC.
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LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS

PENNSYLVANIA POWER & LIGHT CO.
�

HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY

NORTHWEST AIRLINES, INC.
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INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.
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GENERAL MOTORS CORPORATION, INLAND DIVISION

WELDSHIP CORPORATION

S & S DIVING COMPANY

SNIDER INDUSTRIES, INC.
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NATIONAL STEEL AND SHIPBUILDING COMPANY

MAXWELL WIREBOUND BOX CO., INC.
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CONTINENTAL GRAIN COMPANY

MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY

CAPITAL CITY EXCAVATING CO., INC.
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GAF CORPORATION

PPG INDUSTRIES (CARIBE) a Corporation

DRUTH PACKAGING CORPORATION

SOUTHWESTERN ELECTRIC POWER COMPANY

TUNNEL ELECTRIC CONSTRUCTION CO.
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WEATHERBY ENGINEERING COMPANY

JOHNSON STEEL & WIRE CO., INC.
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AUSTIN ROAD CO.
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MAYHEW STEEL PRODUCTS, INC.
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LADISH CO., TRI-CLOVER DIVISION, a Corporation

PULLMAN POWER PRODUCTS, INC.
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NATIONAL ROOFING CORPORATION

OSCO INDUSTRIES, INC.
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HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY

S.J. GROVES AND SONS COMPANY

CAR AND TRUCK DOCTOR, INC.
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PRESTRESSED SYSTEMS, INC.
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TEXACO, INC.
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GEORGIA HIGHWAY EXPRESS, INC.
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RED LOBSTER INNS OF AMERICA, INC.
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SUNRISE PLASTERING CORP.
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STONE & WEBSTER ENGINEERING CORPORATION

H.B. ZACHRY COMPANY (INTERNATIONAL)

NATIONAL INDUSTRIAL CONSTRUCTORS, INC.
�

BUSHWICK COMMISSION COMPANY, INC.
�

CIRCLE T DRILLING CO., INC.
�

J.L. FOTI CONSTRUCTION COMPANY, INC.
�

TEXACO, INC.
�

KENNETH P. THOMPSON CO., INC.
�

HENRY C. BECK COMPANY

HEATH & STICH, INC.
�

FARMERS EXPORT COMPANY

FOSTER AND KLEISER

TURNER WELDING & ERECTION CO., INC.
�

TRI-CITY CONSTRUCTION CO.
�

THE DURIRON COMPANY, INC.
�

SAMSON PAPER BAG CO., INC.
�

MEL JARVIS CONSTRUCTION COMPANY, Inc.
�

MIDWEST STEEL ERECTION, INC.
�

GEISLER GANZ CORPORATION

NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY

NATIONAL MANUFACTURING COMPANY

WALLACE ROOFING COMPANY

REYNOLDS METALS COMPANY, INC.
�

UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.
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SUFFOLK COUNTY CONTRACTORS, INC.
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NORANDA ALUMINUM, INC.
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ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.

GENERAL ELECTRIC COMPANY

SERVICE SPECIALTY, INC.
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ECCO HIGH FREQUENCY ELECTRIC CORP.
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HENRY C. BECK COMPANY

REPUBLIC ROOFING CORPORATION

EASLEY ROOFING & SHEET METAL CO., INC.
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MIDDLETOWN VOLKSWAGEN, INC.
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RICHARD ROTHBARD, INC.
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AUTOMATIC SPRINKLER CORPORATION OF AMERICA

PENNSUCO CEMENT AND AGGREGATES, INC.
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AMFORGE DIVISION, ROCKWELL INTERNATIONAL

MASSMAN-JOHNSON (Luling), a joint venture; MASSMAN CONSTRUCTION CO.; AL JOHNSON CONSTRUCTION CO.
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GENERAL MOTORS CORPORATION, CENTRAL FOUNDRY DIVISION

GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION

EDGEWATER STEEL CORPORATION

INTERLAKE, INC.
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PRATT & WHITNEY AIRCRAFT, A DIVISION OF UNITED TECHNOLOGIES, INC.
�

UNITED STATES STEEL CORPORATION, DUQUESNE PLANT

KENT NOWLIN CONSTRUCTION CO., INC.
�

WANDER IRON WORKS, INC.
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SITKIN SMELTING & REFINING, INC.
�

AMERICAN CYANAMID COMPANY

BETHLEHEM STEEL CORPORATION

J.L. FOTI CONSTRUCTION CO., INC.
�

WRIGHT AND LOPEZ, INC.
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DELAWARE AND HUDSON RAILWAY CO.
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O.E.C. CORPORATION

BROWN-McKEE, INC.
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DUQUESNE LIGHT COMPANY; VECELLIO & GROGAN, INC.
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REXCO INDUSTRIES, INC.
�

MASONRY CONTRACTORS, INC.
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CARGILL, INC.
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STEWART-WARNER CORPORATION

LOUISIANA PACIFIC CORP.; WEYERHAEUSER COMPANY; WEYERHAEUSER COMPANY; KONKOLVILLE LUMBER COMPANY; CONTINENTAL KITCHENS, INC.; BOISE CASCADE CORPORATION; NOBLECRAFT INDUSTRIES, INC.; DIAMOND INTERNATIONAL CORPORATION

REBCO STEEL CORPORATION

S & H RIGGERS & ERECTORS, INC.
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FOREST PARK ROOFING COMPANY

LLOYD C. LOCKREM, INC.
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ED JACKMAN PONTIAC-OLDS, INC.
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CEMENT ASBESTOS PRODUCTS CO.
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HARSHAW CHEMICAL COMPANY

ARMSTRONG CORK COMPANY

DIAMOND ROOFING COMPANY, INC.
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BROWN & ROOT, INC., POWER PLANT DIVISION

F. H. LAWSON COMPANY

WEYERHAEUSER COMPANY; KONKOLVILLE LUMBER COMPANY, INC.; CONTINENTAL KITCHENS, INC.; BOISE CASCADE CORPORATION; NOBLECRAFT INDUSTRIES, INC.; DIAMOND INTERNATIONAL CORPORATION; LOUISIANA-PACIFIC CORPORATION

CONNECTICUT AEROSOLS, INC.
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OSHRC Docket No. 78-25

Occupational Safety and Health Review Commission

February 22, 1980

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[*1]
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BEFORE: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

H. Graff, for the employer

OPINION:

DECISION

BY THE COMMISSION:

On January 11, 1979, the order of Administrative Law Judge Abraham Gold, approving a settlement agreement filed by the parties, was directed for review under section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. � �
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651-678 ("the Act").
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At issue is whether the language of the settlement agreement stating in part that

Respondent certifies that the violations alleged have been abated or will be abated by the time permitted by OSHA or as soon thereafter as practicable . . .

complies with the Commission requirement that settlement agreements reflect the date on which abatement of the violation has been or will be accomplished.
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Dawson Brothers, Mechanical Contractors, 75 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971-73 CCH OSHD P15,039 (No. 12, 1972). n2

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 29 U.S.C. �
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661(i).

n2 The Commission has codified the Dawson Brothers requirements by a revision to the rules of procedure effective Jan. 1, 1980.
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Commission Rule 100(b)(3), 44 Fed. Reg. 70,112 (1979) [to be codified in 29 C.F.R. �
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2200.100(b)(3)].

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[*2]
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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Connecticut Aerosols was issued two citations on December 7, 1977, alleging 38 serious and 7 nonserious violations of the Act.
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The citations specified dates by which the violations had to be abated. A notification of proposed penalties accompanied the citations.
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On December 29, 1977, Connecticut Aerosols filed a Notice of Contest with the Secretary contesting only the proposed penalties for certain items listed in one of the citations. n3

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n3 We note that it is the policy of the Commission to liberally construe a notice of contest that appears to contest only the penalty to include a contest of the citation when a respondent has subsequently indicated that its intent was to contest both.
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Haugan Construction Co., 77 OSAHRC 182/G3, 5 BNA OSHC 1956, 1977-78 CCH OSHD P22,248 (No. 14675, 1977), aff'd 586 F.2d 1263 (8th Cir., 1978); Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD P20,221 (No. 7413, 1975).
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In keeping with that policy, we have carefully reviewed the record and find that precedent inapplicable.
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First, the notice to contest the penalties only is unambiguous.
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Second, unlike the respondents in Haugan and Turnbull, Connecticut Aerosols has never indicated that it intended to contest the citation as well as the penalties.
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Third, the Secretary alleged in the complaint that Connecticut Aerosols contested the penalties only and that the citation had therefore become a final order by operation of law. Connecticut Aerosols admitted this allegation.
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Finally, Connecticut Aerosols has attempted to settle this case and in the process has admitted the violations alleged in the citation, thereby indicating an absence of intent to contest the citation.

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[*3]
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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Under the Act an employer can contest either a citation, the proposed assessment of penalty, or both a citation and the proposed assessment of penalty.
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Section 10(a) of the Act, 29 U.S.C. �
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659(a); Florida East Coast Properties, Inc., 74 OSAHRC 5/C7, 1 BNA OSHC 1532, 1973-74 CCH OSHD P17,272 (No. 2354, 1974); Brennan v. OSHRC (Bill Echols Trucking Co.), 487 F.2d 230 (5th Cir. 1973). If an employer does neither, the citation and proposed penalties become a final order of the Commission by operation of law and are "not subject to review by any court or agency." Section 10(a) of the Act, 29 U.S.C. �
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659(a).
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If an employer contests only the proposed assessment of penalty, the citation, including the abatement date, becomes a final order of the Commission.
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See Florida East Coast Properties, Inc., supra. Consequently, because Connecticut Aerosols contested only the proposed penalties, the abatement dates for the violations in this case have become part of a final order of the Commission.
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Accordingly, they are nor properly a part of any settlement agreement.

The agreement filed [*4]
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with the judge on December 11, 1978, and approved by him on December 12, 1978, provides in part:

(5) . . . respondent hereby withraws its Notice of Contest and the parties agree that the citation and proposed penalty, as amended by this agreement, shall be affirmed and become the final Order of the Occupational Safety and Health Review Commission.

(6) Respondent certifies that the violations alleged have been abated or will be abated by the time permitted by OSHA or as soon thereafter as practicable, and that the penalty, as amended above, has been paid.
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(Emphasis added).

As indicated above, these two paragraphs of the settlement agreement cannot be approved.
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First, under paragraph (5) of the agreement, the parties agree that the citation shall become the final order of the Commission.
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Under the circumstances here, however, all parts of both citations had already become a final order of the Commission by operation of law. Consequently, the Commission has no authority to review an order concerning the citations in this case.
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Florida East Coast Properties, Inc., supra. Second, under paragraph (6) of the agreement the parties agree that the violations [*5]
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"will be abated by the time permitted by OSHA or as soon thereafter as practicable". n4 Again, the date for abatement of the violations had become a final order of the Commission n5 and the Commission has no authority to review that aspect of the Secretary's enforcement action. n6 Florida East Coast Properties, Inc., supra.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n4 Commissioner Cottine notes that the original language of the agreement provided "Respondent certifies that the violations alleged have been abated." The language quoted above was inserted into the original with the initials "a.g." next to it.
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These initials appear to be those of a representative for Connecticut Aerosols who is a signatory to the agreement.
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The insertion does not bear any other initials indicating acquiescence by the Secretary.
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Accordingly, Commissioner Cottine would not conclude that this attempt to change the employer's abatement responsibilities has the concurrence of all parties to the agreement or that it is a part of the bargained-for-exchange between the parties.
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This is reinforced by the status of the original uncontested abatement requirements of the citation made final by operation of law, 29 U.S.C. �
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659(a); modification is permissible only through the statutory procedure for modification of the abatement date, 29 U.S.C. �
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659(c), set forth in Commission Rule 34, 29 C.F.R. �
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2200.34.

n5 The abatement dates set out in the citation were either March 6, 1978, or earlier.
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The settlement agreement was submitted in December, 1978.

n6 Commissioner Cottine notes that both the Secretary and the Commission are without authority to alter the obligations of an employer contained in a Commission final order except through the abatement modification procedure cited in note 4 supra.

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[*6]
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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Thus, because our authority to review is limited under the circumstances, we cannot approve the entire settlement agreement. Although we have authority over other parts of the settlement agreement, we are reluctant to approve those parts because our action might not reflect the intent of the parties.
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See Logan County Farm Enterprises, Inc., 79 OSAHRC 18/G9, 7 BNA OSHC 1275, 1979 CCH OSHD P23,425 (78-4535, 1979); Cf. Seaboard Coast Line Railroad Co., 76 OSAHRC 125/G4, 3 BNA OSHC 1760, 1975-76 CCH OSHD P20,184 (10541, 1975), appeal dismissed, No. 76-1058 (D.C. Cir. March 15, 1976) (Commission found that it would be unfair to a respondent for the Commission to abrogate one term of a stipulation while leaving the remainder intact.
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Consequently, the entire stipulation was cancelled).

Accordingly, the judge's order approving the settlement agreement is set aside and this case is remanded for further proceedings.

IT IS SO ORDERED.
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