Walling Crate Company

Plain-English summary

Walling Crate faced two consolidated cases covering numerous serious, repeated, and nonserious violations, including repeated occupational-noise and failure-to-abate allegations. The parties agreed to reduce penalties, withdraw Walling's contests, and state that the conditions would be abated and remain abated. The agreement did not say when the corrective work had been or would be completed. The Commission held that a settlement must specify the status or date of abatement before approval. It remanded both cases so the judge could clarify Walling's specific abatement responsibilities.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(b)(1); the other cited standards are not identified in the order.
• Outcome: The consolidated settlements were remanded to specify abatement status and dates.
• Key point: A settlement promise to abate is insufficient without a clear statement of when abatement occurred or will occur.

Full text (OSHRC public release)

Docket Nos. 78-1403; 78-1928 (Consolidat

1 of 138 DOCUMENTS

BRISTOL-MYERS COMPANY

BOONVILLE DIVISION OF ETHAN ALLEN, INC.
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OWENS-ILLINOIS, INC.
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CONTINENTAL GRAIN COMPANY

WALLING CRATE COMPANY

OSHRC Docket Nos. 78-1403; 78-1928 (Consolidated) *

• These two cases, involving the same employer, contain common questions of law and are hereby consolidated for review purposes under Commission Rule 9, 29 C.F.R. �
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  2200.9.

Occupational Safety and Health Review Commission

December 13, 1978

COUNSEL:

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Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Henry Walling, Walling Crate Company, for the employer

OPINION:

DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION:

The November 13, 1978 orders of Administrative Law Judge Paul L. Brady, approving the settlement agreement filed by the Secretary and Walling Crate Company ("Walling") in the two above-captioned cases, are directed for review under 29 U.S.C. �
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661(i) and Commission Rule 91a(a), 29 C.F.R. �
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2200.91a(a).

In Docket No. 78-1403, Walling was cited for 2 serious, 2 repeat, and 21 nonserious violations of various general industry occupational safety standards.
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Docket No. 78-1928 involves 1 repeat violation of the occupational noise standard published at 29 C.F.R. �
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1910.95(b)(1) and 1 failure to abate a prior violation of �
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1910.95(b)(1).
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Walling contested all allegations in these cases, and subsequently entered into a settlement agreement with the Secretary whereby penalties would be reduced and Walling would withdraw its notices of contest.
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The agreement further represents that Walling "will abate the violations" described in the citations and the "conditions
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will remain abated." The agreement does not indicate when abatement of the violative conditions will be accomplished.

In Dawson Brothers, Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971-73 CCH OSHD P15,309 (No. 12, 1972), the Commission set forth several prerequisites that must be satisfied before approval of a negotiated settlement will be considered.
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Among other things, the record must reflect the date on which abatement of the violation has been or will be accomplished. The settlement agreement in these cases fails to satisfy this requirement.

These cases are therefore remanded to the judge for the purpose of clarifying Walling's specific abatement responsibilities.
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IT IS SO ORDERED.
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