Texaco, Inc. (Commission decision, September 30, 1982)

Plain-English summary

Texaco and the Secretary settled four citation items, but the employees' union objected to withdrawal of three items and sought to continue their prosecution. The two participating commissioners disagreed over whether employees with party status could raise settlement objections unrelated to the abatement period. Because the vote was divided, they vacated the direction for review and allowed the judge's settlement order to become the Commission's final disposition. Under that order, the noise item was reclassified as nonserious with no penalty and a detailed control plan, while the other three items and their penalties were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(b)(1).
• Outcome: Settlement order became final; one nonserious noise item affirmed without penalty and three other items vacated.
• Key point: The divided Commission left unresolved the scope of an employee party's right to object to citation withdrawals in a settlement.

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 NO. 78�O737

TEXACO,
INC., RESPONDENT & OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION AND ITS LOCAL 4-23, AUTHORIZED EMPLOYEE REPRESENTATIVE

September 30, 1982

DECISION

Before: ROWLAND, Chairman; CLEARY, Commissioner. [1]

BY THE COMMISSION:

An
order of Administrative Law Judge Erwin L. Stuller approving a settlement agreement between the Secretary of Labor and Texaco, Inc., is before the Commission for review. The judge held that the Oil, Chemical and Atomic Workers International Union and its Local 4�23 (�the Union�) were not entitled to an evidentiary hearing on certain objections they raised to the agreement. Commissioner Cleary directed review of the judge�s decision pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 661(i)). The principal issue on review is whether an employee party can object to provisions in a settlement agreement between the Secretary of Labor and a cited employer wherein the Secretary agrees to withdraw contested items of a citation.

The
two participating members are divided on the disposition of this case. Chairman Rowland would affirm the judge�s ruling on the ground that the Commission lacks authority to consider employee objections that are not related to the abatement period. Mobil Oil Corp ., 82 OSAHRC
, 10 BNA OSHC 1905, 1982 CCH OSHD �26,187 (No. 77�4386, 1982) (dissenting opinion). Chairman Rowland agrees with Texaco�s argument that the Secretary�s decision to withdraw the three items at issue eliminates from any possible controversy the one point on which an employee party should be permitted to object to a settlement agreement. 1 Commissioner Cleary would vacate the judge�s order and hold that the Commission has jurisdiction to consider the Union�s substantive objections to the settlement agreement. For the reasons stated in his concurring opinion in Mobil Oil Corp., supra , Commissioner Cleary would hold that under section 10(c) of the Act affected employees who have elected party status must be afforded the opportunity to review and raise objections to settlements proposed by the other parties, including objections to matters other than the abatement period specified in a settlement proposal.

In
view of the divided vote on the merits of the case, Chairman Rowland and Commissioner Cleary agree to dispose of the case by vacating the direction for review. Baldwin Industries, Inc ., 82 OSAHRC , 10 BNA OSHC 1572, 1982 CCH OSHD �25,980 (No. 78�741, 1982), appeal filed , No. 82�7178 (11th Cir. May 28, 1982).

Accordingly,
the direction for review is vacated and the judge�s order is the Commission�s final disposition of this case.

SO ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: SEP 30, 1982

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

Complainant,

v.

OSHRC
DOCKET NO. 78�O737

TEXACO,
INC., RESPONDENT & OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION AND ITS LOCAL 4-23, AUTHORIZED EMPLOYEE REPRESENTATIVE

August 28, 1978

DECISION AND ORDER

APPEARANCES:

JACK F. OSTRANDER, Esquire Office of the
Solicitor U.S. Department of Labor

555 Griffin Square Bldg�Suite 501 Griffin
and Young Streets Dallas, Texas 75202 Attorney for Complainant

MARK A. LIES, II, Esquire Seyfarth, Shaw,
Fairweather & Geraldson

55 East Monroe Street Chicago, Illinois
60603 Attorney for Respondent.

STEVEN WODKA, International Representative
Oil, Chemical and Atomic Workers

International Union Local 4�23 1126 16th
Street, N.W. Washington, D.C. 20036 Representative for Affected Employees

ANTHONY MAZZOCCHI, Vice-President Oil,
Chemical and Atomic Workers

International Union Local 4�23 1126 16th
Street, N.W. Washington, D.C. 20036 Representative for Affected Employees

DECISION

Texaco
Inc. has been charged with four violations of the Occupational Safety and Health Act. The charges are contained in a citation that was issued on January 26, 1978. Texaco contested the citation. After the complaint was filed, the authorized representative of the affected employees, the Oil, Chemical and Atomic Workers International Union (OCAW), elected party status. They did not file a pleading.

The
case was called to trial on June 6, 1978. It was then continued to July 13, 1978.

At
the hearing, the Secretary and Texaco announced that they had reached a basis for the settlement of all issues. All of the parties agreed to the settlement provisions for Item 1 of the citation. [2] As to the three remaining items, the Secretary and Texaco agreed that prosecution of these items would be withdrawn and moved that the items be vacated. OCAW objected.

OCAW
argues that once they elect party status and indicate that they are interested in prosecuting the complaint, no part of the citation or complainant can be vacated without their approval. They believe that they must be allowed to prosecute the Secretary�s citation and complaint when the Secretary refuses to do so.

In
his brief, the Secretary cites one case to support his position: Secretary of Labor v. Southern Bell Telephone and Telegraph Co. , 77 OSAHRC 83/D1, 5 BNA OSHC 1405, 1977�78 CCH OSHD para. 21, 8040, (No. 10340, 1977.). In that case the Commission held that only the Secretary has enforcement power under the Act. The exclusiveness of this power does not allow the affected employees to take over the prosecution or force the Secretary to prosecute. The affected employees do not have the right to prosecute citations. They have no standing to contest the Secretary�s withdrawal of a citation. Apparently, in an employer contest, the employees� rights as a party may be exercised only if the other parties wish to go forward with the case. Therefore, OCAW�s objection to the withdrawal of three items of the citation is overruled.

OCAW
has also requested an order that would require �the Secretary to consult with the authorized employees representative before amending any citations or making any settlement offers in all cases with Texaco Inc., at their facility (Port Arthur, Texas)�. This order was requested because there are several such cases presently pending before judges of this Commission. OCAW is fearful that the Secretary may attempt to settle these cases without their assistance or approval.

ORDER

The
characterization of the violation alleged in Item 1 is amended from �Serious� to �Nonserious�. The abatement provisions and abatement date of the item are stricken and those provisions contained in parties� Settlement Agreement is substituted in their place as if repeated here word for word. Item 1, as amended, is AFFIRMED. The proposed penalty of $1000 is VACATED.

Items 2, 3, and 4 of the citation and the related proposed penalties are VACATED.

ERWIN L. STULLER

Judge

DATED: August 28, 1978

• Commissioner
  COTTINE took no part in the consideration or decision of this case.

1 Under the
settlement agreement, a fourth item is to be affirmed and a detailed plan for the abatement of that violation is to be implemented. Nevertheless, the Union has expressly agreed to the settlement agreement�s disposition of that citation item, including the abatement period established by the agreement.

[2] Pertinent
provision of the Settlement Agreement for Item 1 of the citation, beginning on page 6 of Transcript of Proceedings, is as follows:

(A) Item 1 of the Citation will allege a
non serious violation of 29 CFR 1910.95(b)(1), with no penalty against Respondent.

(4) Respondent will retain the services of
a qualified engineering consultant to advise Respondent with respect to potential engineering controls available to reduce noise levels. Respondent represents it already has obtained services of such a consultant.

(5) Respondent agrees to implement
engineering controls which are now feasible, in an attempt to reduce sound levels in Respondent�s P&S Building (barrel painting facility) to within the levels of Table G�16 or as low as is feasible if it is not possible to reduce levels to within limits of Table G�16.

(6) Respondent agrees to implement
feasible administrative controls to regulate employee contact with noise conditions present in Boiler House No. 6.

(7) Respondent represents that its
affected employees are currently using and will continue to use, and that Respondent is currently enforcing and will continue to enforce, the use of personal hearing protection by the affected employees during the period of implementation of said engineering and administrative controls, and that other times, when employees are exposed to noise levels in excess of Table G�16.

(8) Respondent agrees within 60 days to
submit a proposed plan of feasible engineering and administrative controls of noise control measures to the Area Director, Houston, Texas, that will be implemented to abate the violations alleged in Item 1 of the non serious violation issue, January 26, 1978.

(9) Within 40 days after submission of an
abatement plan to the Area Director, Occupational Safety and Health Administration, Houston, Texas, Respondent agrees to complete feasible administrative or engineering controls in order to abate the violations alleged in Item 1 of the citation issued January 26, 1978.