Aspro, Inc., Spun Steel Division

Plain-English summary

Aspro requested an extension of an abatement deadline, and the judge approved a settlement granting the requested date. The petition had not been posted for affected employees, and the union elected party status shortly after approval and objected. The Secretary acknowledged that employee notice had been omitted and moved to set the order aside with the consent of Aspro and the union. The Commission emphasized that employees must be notified of abatement petitions and settlements and must receive meaningful participation when they elect party status. It vacated the approval and remanded for further proceedings.

Decision snapshot

• Cited standard(s): The order does not identify the standard underlying the abatement requirement.
• Outcome: The settlement approval was set aside and the abatement-extension case was remanded.
• Key point: Failure to post an abatement-extension petition deprives employees of required notice and requires the settlement process to be reopened.

Full text (OSHRC public release)

Docket No. 78-1381

1 of 138 DOCUMENTS

BRISTOL-MYERS COMPANY

BOONVILLE DIVISION OF ETHAN ALLEN, INC.
�

OWENS-ILLINOIS, INC.
�

CONTINENTAL GRAIN COMPANY

WALLING CRATE COMPANY

MATERIAL FABRICATION CORPORATION

BURKART-RANDALL COMPANY

KAISER ALUMINUM & CHEMICAL CORP.
�

BETHLEHEM STEEL CORPORATION, (BUFFALO TANK DIVISION)

WESTERN WATERPROOFING CO., INC.
�

SOUTHWESTERN BELL TELEPHONE CO.
�

CHAMPION CONSTRUCTION & ENGINEERING CO., INC.
�

DEERING MILLIKEN, INC.
�

WESTERN ELECTRIC CO., INC.
�

JOHN & ROY CARLSTROM, d/b/a CARLSTROM BROTHERS CONSTRUCTION

NOBLE DRILLING CORPORATION

IMC CHEMICAL GROUP, INC.
�

CF&I STEEL CORPORATION

DELCO REMY, DIVISION OF GENERAL MOTORS CORPORATION, A CORPORATION

CONTINENTAL CAN COMPANY, U.S.A., a member of THE CONTINENTAL GROUP, INC.
�

McLEAN-BEHM STEEL ERECTORS, INC.
�

BROCKWAY CLASS COMPANY, INC.
�

OTIS ELEVATOR COMPANY

KROEHLER MANUFACTURING CO.
�

GENERAL MOTORS CORPORATION

GROSSMAN STEEL & ALUMINUM CORP.
�

YELVINGTON WELDING SERVICE

MRS PRINTING, INC.
�

BAILEY CONSTRUCTION COMPANY

WILLIAMS ENTERPRISES, INC.
�

ASPRO, INC., SPUN STEEL DIVISION

OSHRC Docket No. 78-1381

Occupational Safety and Health Review Commission

September 15, 1978

�
[*1]
�

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

John A. Zangerle, for the employer

OPINIONBY: COTTINE

OPINION:

DECISION AND ORDER OF REMAND

COTTINE, Commissioner:

The Order of Commission Judge Cecil L. Cutler, Jr., approving a settlement agreement entered into by Aspro, Inc. and the Secretary of Labor, is before the Commission for review under �
�
12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
�
651 et seq. The issues to be considered include whether affected employees were afforded notice and the opportunity to participate in the proceedings initiated by Aspro's petition for modification of abatement date filed on March 27, 1978. n1 The settlement agreement approved by the Judge on May 22, 1978, modified the abatement date as requested by Aspro.

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

n1 Commission Rule 34(c)(1), 29 C.F.R. �
�
2200.34(c)(1), requires that petitions for modification of abatement date "be posted in a conspicious place where all affected employees will have notice thereof."

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

The International Representative for the United Automobile, Aerospace and Agricultural Implement Workers of America and its Local 917 elected party status in this case by letter to the Judge dated May 25, 1978.
�
Thereafter, the Commission received a letter from the International Representative, dated June 7, 1978, objecting to the settlement agreement approved by Judge Cutler.

By motion received August 10, 1978, and served on Aspro and the Authorized Employee Representative, the Secretary of Labor moves the Commission to set aside the Judge's order and remand the case for further proceedings in accordance with Commission Rule 34(d), 29 C.F.R. �
�
2200.34(d). n2 The Secretary states that the petition for modification of abatement date inadvertently was not posted to afford notice to affected employees. He also states that Aspro and the Authorized Employee Representative have consented to the request for a remand.

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

n2 Rule 34(d) sets forth the procedures to be followed when a petition for modification of abatement date is objected to by the Secretary or affected employees.

�
[*3]
�
- - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Commission Rules of Procedure set forth specific requirements for notifying employees that a petition for modification of abatement date has been filed by an employer n3 or a settlement agreement has been entered into by an employer and the Secretary. n4 Absent this notice, affected employees may be deprived of their right to oppose an employer's request for an extension of the abatement date, Keystone Seneca Wire Cloth Co., 75 OSAHRC 83/E10 (microfiche), 3 BNA OSHC 1553, 1975-76 CCH OSHD P19,993 (No. 10996-P, 1975), and to participate in settlement adjudications.
�
Furthermore, where affected employees have indicated an intent to participate in a proceeding by exercising their statutory right to elect party status under 29 U.S.C. �
�
659(c), it is the duty of the Commission judge, as well as the Secretary and the employer, to ensure an opportunity for meaningful employee participation.
�
ITT Thompson Industries, Inc.,    OSAHRC   ,    BNA OSHC   , 1978 CCH OSHD P    (Nos. 77-4174 & 77-4175, 1978). n5

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

n3 See n. 1, supra.

n4 Commission Rule 100(c), 29 C.F.R. �
�
2200.100(c).

n5 Commissioner Barnako would note his concurring opinion in ITT Thompson Industries, Inc., supra, in which he explained his interpretation of the phrase "meaningful employee participation."

�
[*4]
�

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary's motion is granted.
�
The Order approving the settlement agreement is set aside and the case is remanded for further proceedings.

It is so ORDERED.
�