Brown & Root, Inc. (Commission decision, September 30, 1982)

Plain-English summary

The Secretary of Labor and Brown & Root settled a general duty clause case. Under the settlement the Secretary moved to amend the citation and complaint to call the alleged section 5(a)(1) violation serious rather than willful, and to cut the proposed penalty from $9,000 to $400. Administrative Law Judge Louis G. LaVecchia approved it.

The Iron Workers union had been granted intervention by the Commission in an earlier ruling in this same case. It petitioned for review, saying it never got an adequate chance to present objections to the settlement. The Commission agreed. An intervenor has a right to be heard on objections to a settlement between the Secretary and an employer that involves the cited hazard its members were exposed to. Because that right was not afforded, the judge's approval order was set aside and the case remanded.

The Commission also refused to narrow the remand. The Secretary and Brown & Root had filed a joint stipulation asking that the case go back solely to let the intervenor use its ten days to comment on the reasonableness of the abatement date. That limit would frustrate the basis on which intervention had been granted and conflicts with decisions holding that employee interests in settlement proceedings are not confined to the abatement period. Chairman Rowland dissented, adhering to his view that a union may object only to the reasonableness of the abatement date, which could not be at issue here because immediate abatement was required.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The judge's order approving the settlement was set aside and the case remanded, without the limitation the parties' joint stipulation proposed.
• Key point: An intervenor's right to be heard on a settlement covers more than the abatement date, and the settling parties cannot narrow the remand by stipulation.

Full text (OSHRC public release)

Docket No. 78-127

BROWN & ROOT, INC.

OSHRC Docket No. 78-127

Occupational Safety and Health Review Commission

September 30, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

William L. Bedman, for the employer

Terry R. Yelling, Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, for the employees

OPINION:

DECISION

BY THE COMMISSION:

An order of Administrative Law Judge Louis G. LaVecchia is before the Commission pursuant to section 12(j), 29 U.S.C

661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C.

651-678 ("the Act").

Judge LaVecchia approved a settlement agreement submitted by the Secretary of Labor and Brown & Root, Inc.

In the settlement, the Secretary moved to amend his citation and complaint to characterize an alleged section 5(a)(1) violation as serious rather than willful and reduce the proposed penalty from $9,000 to $400.

The International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO ("Iron Workers"), n1 filed a petition for discretionary review asserting that the Iron Workers were not given adequate opportunity to present objections to the settlement proposal.

Commissioner Cleary granted the Iron Workers' petition for discretionary review.

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n1 In early 1978, the Iron Workers sought to intervene and, upon interlocutory appeal of an adverse ruling by the judge, a Commission majority granted the petition for intervention.

Brown & Root, Inc., 7 BNA OSHC 1526, 1979 CCH OSHD P23,731 (No. 78-127, 1979).

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The Iron Workers, having been granted intervention status by the Commission, 7 BNA OSHC 1526, 1979 CCH OSHD P23,731, have a right to be heard on objections to a settlement agreement between the Secretary and an employer that involves the cited hazard to which the employees it represents were exposed.

See Mobil Oil Corp., 82 OSAHRC    , 10 BNA OSHC 1905, 1982 CCH OSHD P26,187 (No. 77-4386, 1982); Englehard Industries, Docket No. 78-2880 (Aug. 30, 1982). n2 Because the Iron Workers have not been afforded this right, we set aside the judge's order approving the settlement agreement and remand the case for further proceedings consistent with this decision and Commission precedent. n3 SO ORDERED.

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[*3]

n2 Chairman Rowland dissents because, for the reasons explained in his dissenting opinion in Mobil Oil Corp., supra, he believes that the union may object only to the reasonableness of the abatement date, and such an objection cannot be made in this case in which immediate abatement is required.

Chairman Rowland does not express any individual views on the union's status in this case because the earlier Commission decision, note 1 supra, is the law of the case.

Stripe-A-Zone, Inc., 82 OSAHRC    , 10 BNA OSHC 1694, 1696, 1982 CCH OSHD P26,069 at p. 32,783 (No. 79-2380, 1982) (Rowland, Chairman, concurring).

n3 On June 25, 1982, a Joint Stipulation of Complainant and Respondent was filed with the Commission, stating that "this matter may be remanded to the administrative law judge for the sole purpose of permitting the Intervenor . . . its full ten days to comment on only the reasonableness of the abatement date provided in the settlement agreement." On August 24, 1982, the Commission notified the parties and the intervenor that consideration of the Joint Stipulation would be deferred until the Commission considered the disposition of the case.

The limitation contained in the stipulation would frustrate the basis of the Commission's grant of intervention.

Furthermore, the limitation is inconsistent with Commission decisions holding that employee interests in settlement proceedings are not limited solely to the resonableness of the abatement period.

See Mobil Oil Co., supra, and Englehard Indus., supra. Accordingly, we decline to limit this remand by the conditions set forth in the Joint Stipulation.

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