Missouri Farmer's Association inc.

Plain-English summary

Three employers submitted settlements that withdrew their notices of contest but stated that they did not admit the alleged violations. The judge rejected the agreements because of that exculpatory language. The Commission held that settlement agreements may contain non-admission clauses when they otherwise satisfy the applicable requirements. It found that the agreements addressed penalties, abatement, employee service, and the required waiting period. The Commission vacated the judge's decision and approved all three settlements.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 2200.7; 29 C.F.R. § 2200.75; 29 C.F.R. § 2200.100(a); 29 C.F.R. § 2200.100(b); 29 C.F.R. § 2200.100(c)
• Outcome: Judge's disapproval vacated and three settlement agreements approved
• Key point: A non-admission clause does not bar approval when a settlement meets penalty, abatement, service, and notice requirements

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�1155

OSHRC
DOCKET NO. 78�1214

OSHRC
DOCKET NO. 78�1409

MISSOURI
FARMER�S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE, MFA, INC., D/B/A MFA
GRAIN DIVISION, DESERT GOLD FEED COMPANY, RESPONDENTS,

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

August 22, 1980

DECISION

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

BY THE COMMISSION:

����������� These
consolidated cases are before the Commission pursuant to Commission Rule 75 [1] as a result of the
certification by Administrative Law Judge David H. Harris of the parties� joint
motion for Interlocutory Appeal. [2]

����������� In
each of these cases the parties submitted a jointly executed Stipulation for
Withdrawal of Notice of Contest (�settlement agreement�) to the judge. Based
upon exculpatory language in each of the settlement agreements, [3] the judge concluded that
they did �not comport with Review Commission policy.� He therefore disapproved
each settlement agreement, citing the Commission decisions in Matt J. Zaich
Construction Co ., 73 OSAHRC 55/D5, 1 BNA OSHC 1225, 1971�73 CCH OSHD
�15,683 (No. 756, 1973); Greenfield & Associates , 73 OSAHRC 28/A2, 1
BNA OSHC 1245, 1971�73 CCH OSHD �16,269 (No. 798, 1973); and Blaisdell
Manufacturing, Inc. , 73 OSAHRC 53/B8, 1 BNA OSHC 1406, 1973�74 CCH OSHD �
16,915 (No. 1566, 1973).

����������� Since
the issuance of the judge�s decision in this case, the Commission has held that
settlement agreements which meet the requirements set out in Dawson
Brothers-Mechanical Contractors , 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971�73
CCH OSHD �15,039 (No. 12, 1972) as adopted by Commission Rule 100, [4] will be approved by the
Commission even if they contain exculpatory language. Farmer�s Export Co .,
80 OSAHRC ��, 8 BNA OSHC 1655, 1980 CCH OSHD �24,569 (No. 78�1708, 1980). To
the extent that Zaich, Greenfield, and Blaisdell were inconsistent with Farmer�s
Export they were overruled.

����������� Commission
Rule 100, which essentially codifies the criteria set forth in Dawson
Brothers-Mechanical Contractors, supra, provides, in pertinent part, as
follows:

�

Rule 100 Settlement.

�

(b) Requirements. Every settlement
proposal submitted to the Judge or Commission shall include, where applicable,
the following:

�

(1) A motion to amend or withdraw a
citation, notification of proposed penalty, notice of contest, or petition for
modification of abatement;

�

(2) A statement that payment of the
penalty has been tendered or a statement of a promise to pay; and

�

(3) A statement that the cited condition
has been abated or a statement of the date by which abatement will be
accomplished.

�

(c) Filing; service and notice. When a
settlement proposal is filed with the Judge or Commission, it shall also be
served upon represented and unrepresented affected employees in the manner
prescribed for notices of contest in � 2200.7. Proof of service shall accompany
the settlement proposal. A settlement proposal shall not be approved until at
least 10 days following service of the settlement proposal on affected
employees.

�

����������� The settlement
agreements in these cases comply with the criteria set forth in Commission Rule

100. Each of the agreements includes a motion by Respondent to withdraw its
     notice of contest. Payment of the amended penalties has been tendered in Docket
     Nos. 78�1155 and 78�1214. There is a promise to pay the penalty in Docket No.
     78�1409. Desert Gold Feed Co. (Docket No. 78�1409) has certified that it is now
     in compliance. A specific abatement date has been established in Docket Nos.
     78�1155 and 78�1214. Proof of service accompanies each settlement proposal and
     more than 10 days has elapsed since each settlement proposal was posted at
     Respondents� premises. Moreover, these agreements are not clearly repugnant to
     the Act�s objectives and provisions.

����������� Accordingly,
the judge�s decision is vacated and the settlement agreements are approved.

�

SO ORDERED.

�

FOR THE COMMISSION:

�

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: AUG 22, 1980

�

COTTINE, Commissioner, concurring:

����������� The
exculpatory provisions contained in the settlement agreements before us do not
attempt to preclude or limit the use of the affirmed violations in future
proceedings before the Commission. [5] Accordingly, for the
reasons set forth in Part I of my separate opinion in Farmer�s Export Co .,
80 OSAHRC ___, 8 BNA OSHC 1655, 1980 CCH OSHD �24,569 (No. 78�1708, 1980), I
concur in vacating the judge�s order before us.

����������� I
also join my colleagues in approving the agreements filed by the parties. The
agreements comply with the requirements set forth in Dawson Brothers,
Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971�73 CCH OSHD �
15,039 (No. 12, 1972) and Commission Rule 100, 29 C.F.R. � 2200.100. In
addition, the record reveals that the judge considered all provisions of the
agreements and found only the exculpatory provisions unacceptable. [6] On the record before us it
is appropriate to conclude that the agreements are consistent with the
provisions and objective of the Act and should be approved. [7]

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

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

������������������������ v.

OSHRC
DOCKET NO. 78�1155

OSHRC
DOCKET NO. 78�1214

OSHRC
DOCKET NO. 78�1409

MISSOURI
FARMER�S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE, MFA, INC., D/B/A MFA
GRAIN DIVISION, DESERT GOLD FEED COMPANY, RESPONDENTS,

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

ORDER

����������� It
appearing that the Compromise Settlement Agreement submitted by the parties
herein does not comport with Review Commission policy, cf., Matt J. Zaich
Construction Company , Docket No. 0756 (April 17, 1973); Greenfield &
Associates, Docket No. 0798 (July 17, 1973) and Blaisdell Manufacturing, Inc .,
Docket No. 1566 (November 14, 1973), it is

����������� ORDERED
that the said Compromise Settlement Agreement be and the same is hereby
disapproved.

�

DAVID H. HARRIS

JUDGE, OSHRC

Dated: November 21, 1978

�

New York, New York

[1] 29 C.F.R. �
2200.75. This rule has since been amended. See 44 Fed. Reg. 70,106, 70,111
(1979).

[2] On December 19,
1978, the Commission ordered these proceedings stayed pending the disposition
of the interlocutory appeal.

[3] In Docket Nos.
78�1155 and 78�1214 the settlement agreements provide, among other things, that
each Respondent �neither admits or denies any violation.� The settlement in
Docket No. 78�1409 provides that Respondent does not admit any violation of the
Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651�678. The
settlement in Docket No. 78�1429 further provides that Respondent�s withdrawal
of its notice of contest will not have any effect �in any action other than an
action or proceedings specifically under the Occupational Safety and Health
Act.�

[4] 29 C.F.R. �
2200.100. This rule was revised by the Commission on December 5, 1979. 44 Fed.
Reg. 70,106, 70,112 (1979).

[5] The agreement in Desert
Gold , OSHRC Docket No. 78�1409, provides, in pertinent part, the following:

Nothing contained herein shall be deemed
an admission by respondent of a violation of the Occupational Safety and Health
Act or any regulation or standard issued pursuant thereto. Nor does this
withdrawal have any effect whatsoever in any action other than an action or
proceeding specifically under the Occupational Safety and Health Act .
[emphasis added.]

The
parties have agreed to the following language in Missouri Farmer�s Association,
Inc., OSHRC Docket No. 78�1155 and MFA, Inc., OSHRC Docket No. 78�1214:

Nothing in this Stipulation is to be taken
as an admission for the purpose of any proceeding other than one before the
Occupational Safety and Health Review Commission , it being understood that
Respondent neither admits nor denies violations of the act and this Stipulation
is made in order to prevent further litigation and expense to both the
government and the Respondent and in order to insure compliance with the act.
[emphasis added.]

[6] In a letter dated
August 28, 1978, the judge informed the parties that he would approve the
agreements if the exculpatory language was changed.

[7] I do not join in
my colleagues� criteria for approval��these agreements are not clearly
repugnant to the Act�s objectives and provisions��because the test is contrary
to Commission precedent, see American Cyanamid Company , 80 OSAHRC ____,
8 BNA OSHC 1346, 1980 CCH OSHD �24,424 (No. 77�3752, 1980); Kaiser Aluminum
& Chemical Corp ., 78 OSAHRC 103/E8, 6 BNA OSHC 2172, 1978 CCH OSHD �
23,200 (No. 76�2293, 1978), appeal dismissed , No. 79�7047 (9th Cir. Feb.
7, 1980); American Airlines , 75 OSAHRC 43/F3, 2 BNA OSHC 1391, 1974�75
CCH OSHD � 19,393 (No. 6087, 1974), and to Commission Rule 100 that is
selectively quoted in the majority opinion. The rule states:

(a) Policy . . .. A settlement proposal
shall be approved when it is consistent with the provisions and objectives of
the Act.

29
C.F.R. � 2200.100(a). See also my separate opinion in GAF Corporation ,
OSHRC Docket Nos. 78�0867 & 78�1399 (Aug. 22, 1980).