Boise Cascade Corporation

Read the official release (oshrc.gov)

Plain-English summary

Boise Cascade and the Secretary were negotiating settlement of extensive citations from a Maine pulp and paper mill when the employee union objected that it had not been included in the negotiations. The ALJ ordered that the union receive notice and be present as a silent observer at future settlement discussions. The Commission set aside that order because settlement authority belongs to the Secretary, and the Commission may not dictate the method or degree of employee participation. It held that employees should have a practical opportunity to provide input before an agreement is finalized, and a judge may review an alleged denial only in unusual or egregious circumstances suggesting an abuse of the Secretary's discretion. The Commission found that the union had already received substantial information and opportunities to present its views. It lifted the stay and directed the ALJ to allow the Secretary and Boise 25 additional days to submit a settlement agreement without further inquiry into union input. The decision does not identify individual OSHA standards among the numerous citation items.

Decision snapshot

• Cited standard(s): None individually identified in the decision
• Outcome: ALJ settlement-participation order set aside; stay lifted; 25-day extension granted for filing a settlement.
• Key point: Employee representatives must have an opportunity for settlement input, but the Secretary controls how that input is received unless a clear abuse of discretion appears.

Full text (OSHRC public release)

Docket No. 89-3087_89-3088

SECRETARY OF LABOR,

Complainant,

v.

BOISE CASCADE CORPORATION,

Respondent.

UNITED PAPERWORKERS' INTERNATIONAL UNION, LOCAL
900,

Authorized Employee

Representative.

Docket Nos. 89-3087 & 89-3088

DECISION AND ORDER

BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN,
Commissioners.

BY THE COMMISSION:

These cases present issues relating to the
application of our recent decision in General Electric Co. , 14 BNA OSHC 1763, 1990
CCH OSHD � 29,072 (No. 88-2265, 1990) (" GE "), in which we held that when
the Secretary and the employer seek to settle a case which is pending before the
Commission, any affected employees or their representatives who have elected party status
should be given the opportunity to offer their input to the proposed settlement before it
is executed and submitted to the Commission or a judge for approval.  See National
Steel & Shipbuilding Co ., 14 BNA OSHC 1866, 1990 CCH OSHD � 29,127 (Nos. 88-227
et al., 1990) ("National Steel").

In the cases now before us, the Secretary
conducted an inspection over a period of several months at a pulp and paper mill in
Rumford, Maine, operated by Boise Cascade Corporation ("Boise"), after which the
Secretary issued a number of citations alleging numerous violations of the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 651-78 ("the Act").  Boise
and the Secretary then engaged in settlement negotiations over an extensive period of
time.[[1/]]  In response to a joint request by the Secretary and Boise for an
extension of time to file a settlement agreement, the United Paperworkers International
Union, Local 900 ("UPIU"), which had elected party status as the representative
of affected employees,[[2/]] asserted that it had not been allowed to participate in the
settlement discussions between the Secretary and Boise.

After receiving briefs from each party on the
question of the right of a union party to participate in settlement negotiations, as well
as affidavits, Administrative Law Judge Delbert R. Terrill issued the order that is before
us now.  Essentially, Judge Terrill interpreted our decision in GE as
establishing a minimum level of employee involvement in the settlement process.  In
his order, Judge Terrill viewed GE as entitling employees or their representatives
to be present during all settlement negotiations, including conferences conducted by
telephone.  However, the judge concluded that GE does not require that
employees or their representatives actually be allowed to speak at those negotiations, i.e. ,
employees can be limited to the role of "silent observers."  He therefore
ordered that the UPIU be given reasonable notice of any future settlement discussions so
that it would have an opportunity to be present at such discussions.  The judge also
found from the parties' affidavits that the UPIU was not present at a settlement
discussion held on June 12, 1990, nor was it informed of the substance of that discussion.
  He further found that the record was not clear as to the extent of any prior
settlement discussions or the degree to which the UPIU had been present at any such
negotiations. Accordingly, he granted a request by the UPIU for disclosure of information
regarding these settlement negotiations.

Both Boise and the UPIU filed petitions for
interlocutory review.  Boise takes issue with Judge Terrill's orders directing that
the UPIU be included in settlement negotiations and that information regarding the
settlement negotiations be disclosed to the UPIU. Boise also disputes the judge's factual
findings that the union was not allowed to participate in those negotiations.  The
UPIU excepts to the judge's order limiting it to the status of a ''silent observer."
  We granted both petitions and, in view of the importance of these issues to the
enforcement of the Act, ordered oral argument in these cases.  For the reasons that
follow, we conclude that Judge Terrill erred, and we set aside his order.

Essentially, Boise contends that Judge Terrill
misapplied our decision in GE .  In Boise's view, while GE expresses the
principle that employees or their representatives should have the opportunity to be heard
when an employer and the Secretary seek to settle a case, GE does not authorize the
judge to inject himself into the settlement process by ordering any particular type or
manner of employee participation.  Furthermore, Boise asserts that the judge should
not make any determination as to whether employees have been given the opportunity to be
heard until after the settlement agreement is executed and submitted for approval.  
The Secretary argues in support of Boise's position and asserts that it is his practice to
receive views from affected employees or their proposal.  Conversely, the UPIU
contends that the right to elect party status under the Act entitles employees to
participate as full equals to the Secretary and the employer in the settlement process
and, therefore, argues that employees or their representatives have the right to be
present and to express their views at all settlement negotiations.

In GE , we noted that the Act reflects
Congress' determination that while the Secretary has the ultimate responsibility for
enforcing the Act, employees have a legitimate interest in providing input to the
Secretary when he makes decisions on their behalf.  At the same time, however, we
acknowledged the well-settled case law that the Commission and affected employees or their
representatives have only limited roles in the settlement process.  14 BNA OSHC at
1764-65, 1990 CCH OSHD at pp. 38,849-50. Accordingly, we sought in GE to balance
the interests of employees in having their views heard against the limitations placed on
the Commission's authority when the Secretary and employer propose to settle a case.
  We therefore held that the Secretary and employer should inform employees or their
representatives that settlement negotiations are being conducted and should receive the
input of employees or their representatives before executing any settlement agreement.
  In addition, we indicated that after a settlement agreement is executed and
submitted for approval by the Commission or judge, it would be examined to determine
whether employees were given an opportunity to provide input during its formulation.
  We did not expressly address the issue raised here of whether the Commission or a
Commission judge can direct that the employees' input be received in any particular way
through the issuance of orders enforceable in the Commission proceeding.  We also did
not rule on whether the determination of the extent of employee input may be made before
the settlement agreement is submitted for approval.  However, we believe that the
basic principles underlying the enforcement of the Act that we referred to in GE
provide a framework for resolving these issues as well.

While neither the Act nor its legislative
history explicitly address the role of employees or their representatives in the
settlement of a case pending before the Commission, it is clear that Congress intended and
expected that affected employees would have an opportunity to be heard during the
adjudicatory process.  Thus, Congress required in section 10(c) of the Act, 29 U.S.C.
� 659(c), that affected employees or their representatives be afforded an opportunity to
participate as parties in commission proceedings. Furthermore, the history of the Act and
its numerous provisions regarding the participation of employees in other contexts evince
a plain understanding on the part of Congress that attainment of the Act's goal of a safe
and healthful workplace requires a cooperative endeavor that can only be accomplished
through the assistance and involvement of employees.

For example, the legislative history of the Act
clearly reflects Congress's concern that employees be consulted at the very inception of
an enforcement proceeding, that is, during the inspection of their employer's worksite.
  As the House Committee on Education and Labor stated, "If an inspector
determines that a danger to health and safety exists, he should be able to advise a
worker's representative or be able to question workers, who ought to be permitted to
disclose their concern with an alleged hazardous work area."  H.R. Rep. No.
1291, 91st Cong., 2d Sess. 22 (1970), reprinted in Senate Comm. on Labor and Public
Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health
Act of 1970, at 852 (1971).  See S. Rep. 1282, 91st Cong., 2d Sess. 11 (1970),
id . at 151 ("appropriate degree of involvement of employees themselves in the
physical inspections of their own places of employment").  The Act's initial
declaration of "Congressional Findings and Purpose" in several places also
refers to the need to consult with employees.  Congress indicated, among other
things, that the objectives of the Act would be met "by encouraging employers and
employees in their efforts to reduce the number of occupational safety and health hazards
at their places of employment, and [by stimulating] employers and employees to institute
new and to perfect existing programs for providing safe and healthful working
conditions."  Section 2(b)(1), 29 U.S.C. � 651(b)(1).  Similarly, Congress
stated that the Act was intended to "[build] upon advances already made through
employer and employee initiative for providing safe and healthful working conditions"
and to foster "joint labor-management efforts to reduce injuries and disease arising
out of employment."  Section 2(b)(4), (13); 29 U.S.C. � 651 (b) (4), (13).
  As we pointed out in GE , the clear intent of Congress that the views of
employees be taken into consideration is implemented in specific statutory provisions
which allow employees to participate both in the development of occupational safety and
health standards and in the enforcement of the Act against a particular employer,
including the opportunity to request an inspection, to accompany an inspector, and to
consult with the inspector regarding possible violations of the Act.  14 BNA OSHC at
1766, 1990 CCH OSHD at p. 38,850; sections 6(b)(1), 6(b)(6)(A), 6(d), 8(e)-(f); 29 U.S.C.
�� 655(b)(1), 655(b)(6)(A), 655(d), 657 (e)-(f).

Nevertheless, Congress's determination that the input of employees is essential to
effectuating the purposes of the Act does not establish that Congress intended employees
to constitute a separate and distinct enforcement authority under the Act.  On the
contrary, as the Sixth Circuit observed in Marshall v. OSHRC (IMC Chem. Group) , 635
F.2d 544, 550-51 (6th Cir. 1980), the Act does not grant employees a private right of
action.  Rather, prosecutorial discretion in the enforcement of the Act is vested
solely in the Secretary.  Id .; Donovan v. OSHRC (Mobil Oil Corp.) , 713
F.2d 918, 927 (2d Cir. 1983).  Accordingly, it is the Secretary who is responsible
for protecting the interest of employees in safe and healthful working conditions.  Cuyahoga
Valley Ry. v. United Transp. Union , 474 U.S. 3 (1985).  As the court
stated in Oil, Chem. & Atomic Workers Int'l v. OSHRC (American Cyanamid Co.) ,
671 F.2d 643, 649 (D.C. Cir.), cert. denied , 459 U.S. 905 (1982), "the Act
creates public rights that are to be vindicated by the Secretary through government
management and enforcement of a complex administrative scheme."  Thus, while
Congress expected that employees would be heard during the enforcement process, Congress
intended the Secretary to ensure that the views and concerns of employees have been taken
into consideration in the exercise of his prosecutorial discretion.  See IMC Chem.
Group , 635 F.2d at 551, in which the court cited with approval the Commission's
statement in Southern Bell Tel. & Tel. Co. , 5 BNA OSHC 1405, 1406, 1977-78 CCH
OSHD � 21,840, p. 26,295 (No. 10340, 1977) that "Congress intended to prelude
employees and their representatives from usurping the Secretary's prosecutorial
discretion."

The discretion to settle a case pending before
the Commission is an adjunct of the Secretary's prosecutorial and enforcement authority.
  American Cyanamid , 671 F.2d at 650 ("necessarily included within the
prosecutorial power is the discretion to withdraw or settle a citation issued to an
employer.")  We conclude that since Congress intended the interests of employees
to be effectuated through the Secretary's judgment as the enforcing authority under the
Act, the entry of a Commission order directing either the method or degree of employee
input into the process of a settlement that is ongoing between the Secretary and the
employer would contravene the Secretary's enforcement authority and discretion.[[3/]]

Our conclusion that the Commission is not empowered to issue an order regarding the method
or degree of employee input during the settlement process is supported by decisions
addressing the difference between employee participation when there is ongoing litigation
between the Secretary and the employer and the role of employees when the Secretary and
employer seek to settle rather than litigate.  At oral argument, counsel for the UPIU
referred us to decisions holding that, in cases in which the merits of the Secretary's
enforcement action are in dispute and are being litigated before the Commission, employee
parties are fully co-equal to the Secretary and employer and have the same right to
litigate all the disputed issues.  E.g., Donovan v. International Union, Allied
Industrial Workers (Whirlpool Corp.) , 722 F.2d 1415, 1419 (8th Cir. 1983); Donovan
v. Oil, Chemical and Atomic Workers International (American Petrofina Co.) , 718
F.2d 1341, 1350 (5th Cir. 1983), cert. denied , 466 U.S. 971 (1984); American
Cyanamid , 671 F.2d at 647.  However, these cases also recognize that the role
of employee parties in the settlement process is subordinate to that of the Secretary and
employer.

For example, the Eighth Circuit reasoned that
because the employer invokes Commission review of the merits of citation items, the union
can litigate matters other than the reasonableness of the abatement period only if those
matters are in dispute between the Secretary and the employer.  722 F.2d at 1421.
  That holding is consistent with the view the Commission previously stated in
Southern Bell:

[I]f the employer contests a citation, the union can become a party to the hearing, but if
the employer does not contest, the only way the union can become a party. . . is if it
contests the abatement period.  [Where] the union has become a party in a proceeding
initiated by the employer's notice of contest, its party status is, in effect, what might
best be termed vicarious .

5 BNA OSHC at 1406, 1977-78 CCH OSHD at p.
26,295 (emphasis added).  With respect to the actual mechanism by which a settlement
is achieved between the Secretary and the employer, the Fifth Circuit expressed agreement
with the Second Circuit in Mobil oil that "employers would only be discouraged
from entering settlement negotiations with the Secretary if they knew further
proceedings before the Commission could be required."  718 F.2d at 1353, quoting
713 F. 2d at 927 (emphasis added).  Similarly, in describing the enforcement
authority of the Secretary, the Supreme Court held that "a necessary adjunct of that
power is the authority to withdraw a citation and enter into settlement discussions
with the employer ."  Cuyahoga Valley , 474 U.S. at 7 (emphasis added).

Accordingly, we conclude that the enforcement
scheme created by the Act, which gives the Secretary responsibility for safe-guarding the
interests of employees in the exercise of his prosecutorial discretion, precludes the
Commission from directing the method and degree of involvement of employees in any
settlement proceedings through the issuance of Commission orders.  Clearly, Judge
Terrill exceeded his authority by his order requiring the Secretary and Boise to allow the
UPIU to be present during their settlement negotiations.[[4/]]  His order is contrary
to the enforcement scheme established by the Act and is therefore set aside.

However, we emphasize that while we cannot order
the method by which the Secretary and employer receive the views of employees or the
amount of input they receive, consistent with the principles expressed in GE we
expect them to make every effort to provide employees with the opportunity for input in
the settlement process as much as practicable.  We recognize that the manner in which
the Secretary and employer conduct their settlement negotiations may vary from case to
case.  In a relatively simple case involving only a few comparatively minor
violations, the settlement process will likely not take the same form as in a case
involving numerous and complex citations.  It is conceivable that in some cases the
settlement process will consist only of correspondence or telephone conversations between
counsel for the Secretary and employer, in contrast to proceedings, such as those before
us here, in which settlement requires extensive and prolonged face-to-face discussions.
  Thus, practical and effective methods of receiving the input of employees will vary
depending upon the circumstances of the case.

We note that at oral argument, counsel for the
Secretary assured us that it is the policy of the Secretary to confer with employees or
give them the opportunity to confer prior to the finalization of a settlement agreement.
  As part of this process, counsel for Boise suggested that employees be given a copy
of a draft settlement agreement before it is submitted for approval by the judge so that
employees can indicate whether they have any objections to the proposed settlement.  
In certain cases, this would be an appropriate way for the Secretary and the employer to
obtain input from employees.  However, it is not the only way to receive employee
input. Instead, we emphasize again that the method and degree in which affected employees
or their representatives will be heard is the responsibility of the Secretary.   We
intend these remarks as guidance to the Secretary in exercising his discretion as the
prosecutorial authority under the Act.

Nevertheless, while the Act vests authority in
the Secretary to protect the interests of employees, it does not grant the Secretary
discretion that is wholly unlimited.  Generally speaking, the Act recognizes some
constraints on the Secretary's discretion and provides that the Secretary's exercise of
his discretion is subject to review.  For example, section 8(f) (2), which allows
employees to notify an inspector of any violation which they believe exists in their
workplace, requires the Secretary "to establish procedures for informal review of any
refusal by a representative of the Secretary to issue a citation with respect to any such
alleged violation." Furthermore, section 10(c) of the Act also supports the
proposition that the Secretary's exercise of his prosecutorial discretion is reviewable.
  As we noted in GE , it is well-settled that employees or their
representatives may object before the Commission to the substantive terms of a settlement
agreement with respect to the reasonableness of the period of time prescribed for
abatement of a violation.  14 BNA OSHC at 1765, 1990 CCH at p. 38,849.  This
opportunity, which is recognized in the Commission's rules as well, [[5/]] arises from a
specific provision of section 10(c) which allows employees or their representatives to
contest a citation on the ground that the abatement period set forth is unreasonable.
  Thus, while the Secretary generally has authority to act on behalf of employees,
employees have an independent right to be heard where there is an objection to the
abatement period.  Mobil Oil , 713 F.2d at 928-29.  Similarly, the
Secretary's prosecutorial discretion does not take precedence over the rights of employees
under section 11 of Act, 29 U.S.C. � 660(a), which entitles any "person"
aggrieved by an order of the Commission to file a petition for review in the courts of
appeals.  Employees or their representatives have the right to appeal an adverse
ruling of the Commission even if the Secretary, in the exercise of his discretion, chooses
not to seek review.  American Cyanamid , 671 F.2d 648-49.

In view of the clear importance attached by
Congress to employee input, we conclude that while we cannot order the method and degree
by which the Secretary and employer receive the views of employees, we can review the
Secretary's actions in this regard to determine whether the Secretary has abused his
discretion.  We also note that the limited right of employees to object to the
reasonableness of the abatement period in a settlement agreement once that agreement has
been submitted to the Commission or judge for approval is distinct from the opportunity to
provide input on all matters pertaining to the settlement before the agreement is
finalized.  Therefore, we also reject Boise's contention that during the settlement
process, employees may only be heard with respect to the reasonableness of the abatement
period.  National Steel, 14 BNA OSHC at 1868, 1990 CCH OSHD at p. 38,920; GE, 14 BNA
OSHC at 1766 n.5, 1990 CCH OSHD at p. 38,851 n.5.

As we have indicated, the Secretary assured us
at oral argument that his policy is and has been to afford employees an opportunity to
present their input before he enters into any settlement agreement.  In view of the
Secretary's latitude to define the method and degree of employee input that he will
receive in any particular case, we conclude that it will not be proper for the judge to
inquire into the provision of employee input except in unusual or egregious cases where it
appears that the Secretary has contravened his stated policy by denying employees an
opportunity for input.  In such a situation, the absence of an opportunity for
employees to offer input would in our view constitute an abuse of discretion on the part
of the Secretary.  We emphasize that because of the limited authority of the
Commission to review settlement agreements, the judge is obligated to avoid any undue
interference in the settlement process.  We therefore conclude that, except in those
rare cases where there clearly appears to be an abuse of discretion by the Secretary, the
proper role for the judge is to advise the Secretary and employer of any claim that
employees have not been given an opportunity for input so that the Secretary and employer
may then reconsider their positions in light of the claim.

The judge must have discretion to entertain
claims that employees have not been heard in the settlement process before the
settlement agreement is finalized and executed by the Secretary and employer.  In
that way, the Secretary and employer can take the employees' claims into consideration,
and the Secretary will be better able to fulfill his responsibility to ensure that
employees have had an adequate opportunity to be heard. [[6/]]  Considering that
employee input will only be beneficial if it is received before the Secretary and employer
have reached a final decision on the terms of a settlement, we think it would also be
unwise to adopt the rule, advocated by Boise, that a judge must wait until after he
receives the executed settlement agreement before addressing any concerns of the employees
regarding the degree of their input into the settlement process.  Accordingly, we
conclude that Judge Terrill did not err in considering the UPIU's objection before a
settlement agreement was submitted to him for approval.

The UPlU's claim that it has not been given an
opportunity to provide input in this matter is clearly without merit.  The record
reflects that the UPIU was substantially involved in these proceedings from their
inception.  Representatives of the UPIU were present both at the closing conference
following the inspection and at an informal conference with the Secretary and Boise after
the citations had been issued.  The UPIU at that time advised the Secretary and Boise
that it wished to be granted party status at any Commission proceeding that arose from
these citations.  Thereafter, all pleadings, as well as Judge Terrill's orders, were
served on the UPIU.  While the UPIU was not present at the actual settlement
negotiations between Boise and the Secretary, an affidavit from Stephen C. Perry, who
appeared on behalf of the UPIU in these proceedings, concedes that "on several
occasions, after settlement negotiations commenced, [he] received aspects of settlement
negotiations."  It is also undisputed that during November 1989 Boise conducted
a series of meetings at the worksite with representatives of the UPIU for the purpose of
addressing approximately 800 citation items which remained unresolved following the
informal conference.  According to the unrebutted affidavits of Jerry T. Fields,
Boise's corporate safety and health director, and Thomas J. Wheeler, who at the time was
safety and health coordinator for the Rumford plant, a consensus was reached regarding the
methods and time for correcting these violations.  As part of this consensus,
employee representatives stated their priorities for addressing the various violations.
  Shortly thereafter, Fields and Wheeler as well as the UPIU representatives met with
the Secretary's acting area director and other OSHA personnel to present the results and
recommendations resulting from the management/employee meetings.

On June 12, 1990, the Secretary and Boise met
again to discuss issues which remained outstanding as of that date.  In an unrebutted
affidavit, the Secretary's area director, C. William Freeman, averred:

That, on June 7 and 8, 1990, members of his
staff had advised employee representatives of the meeting scheduled for June 12, 1990 and
informed representatives that a latter [sic] meeting would be scheduled with them to
discuss the June 12th meeting.  On June 12th his staff spoke with Mr. Perry and set
up a meeting on June 13th at the Regional office.  Also on June 7 and 8, 1990, OSHA
advised the employee representatives that no final decisions would be made in this matter
until he had met with them.  This was explained at the meeting on July 12, 1991 to
representatives of the Respondent.  In point of fact, no final decisions were (have
been) taken until he consulted with Mr. Perry and other employee representatives.

That, on June 13, 1990, he, two of his staff,
and the OSHA Acting Regional Administrator for Region I met with Mr. Stephen Perry, at
Boston, Massachusetts for the purpose of obtaining from Mr. Perry and two union
representatives from Respondent's Rumford, Maine mill the representatives' input into this
matter, to allow for an informed evaluation of this matter (and to assist in the
formulation of policy and recommendations which were subsequently made to counsel for OSHA
regarding the sixteen items at issues between the parties).

That, on June 13, 1990, OSHA reviewed with Mr. Perry and the two union representative[s]
all substantive facts regarding the matters at issue.

That, on June 13, 1990, OSHA verified with Mr.
Perry and the two union representatives several assertions made by the Respondent on and
prior to June 12, 1990.

That, on June 13, 1990, OSHA obtained and
discussed at length the positions of Mr. Perry and the two union representatives as to
hazards existing in the workplace in question, methods which might be implemented to abate
these hazards, their priorities in this matter, and the like, all of which were
specifically considered in [OSHA's] subsequent formulation of positions with [its] counsel
for subsequent negotiation with the Respondent.

Since it is undisputed that on several occasions
the Secretary informed the UPIU of the substance of the settlement discussions with the
employer, and the UPIU was given general opportunities to fully discuss its concerns with
respect to the citations, the UPIU has been afforded an opportunity for input in a manner
consistent with this decision. [[7/]]

At the time of the June 12, 1990 settlement
meeting there was an outstanding order of Judge Terrill directing Boise and the Secretary
to submit their settlement agreement by July 12, 1990.  On that date, however, Judge
Terrill directed that settlement negotiations cease pending his ruling on the issue of the
right of the UPIU to be present at the settlement negotiations.  The judge also
denied a request by the Secretary and Boise for an extension of time of slightly less than
one month, from July 12, 1990, to August 9, 1990, to submit their settlement agreement. In
our order granting interlocutory review, we also stayed all settlement discussions pending
our decision. In view of the fact that settlement negotiations have been suspended since
July 12, we conclude that the additional extension of time requested by Boise and the
Secretary should be granted.

Accordingly, Judge Terrill's order is set aside,
and the stay we previously entered is vacated.  Judge Terrill is instructed to allow
the Secretary and Boise an additional period of 25 days to submit a settlement agreement
for approval.  We emphasize that in view of our determination that an opportunity for
employee input has been provided consistent with the Secretary's policy, the judge is to
conduct no further inquiry into the matter of employee input and is to issue no additional
orders relating to the provision of input by the UPIU.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Dated: February 1, 1991

MONTOYA, Commissioner, concurring:

I reluctantly join in the majority's opinion in this case.  I have no quarrel with
the outcome here since I fully agree with my colleagues' conclusion that the Secretary and
Boise have already provided UPIU with significant opportunities for input into their
prospective settlement agreement, and they have stated their intention in oral argument to
continue doing so until a final agreement is executed and filed with the judge.  I am
disturbed, however, by the precedent of the courts of appeals regarding the role of the
Commission and its judges when union or affected employee parties raise the claim that
they have been denied an opportunity for input into the settlement process.  From a
public policy viewpoint, I can see a great deal of merit to UPIU's arguments that the
Commission and its judges should take a more active role in protecting affected employee
interests and assuring that they are given an opportunity to provide input into the
settlement process.  If I were "writing on a clean slate," I would
undoubtedly support a position much closer to UPIU's position than the position taken by
the Commission in this case.  Unfortunately, I am not writing on a clean slate, but
am severely constrained by well established case law restricting the authority of the
Commission in relation to affected employee objections to settlement agreements.  See
Donovan v. OCAW (American Petrofina Co. ), 718 F. 2d 1341, 1351-53 (5th Cir. 1983), cert.
denied , 466 U.S. 971 (1984) (court adopts narrow interpretation of right of employees
to participate in the settlement process in view of case law consistently supporting that
position).  I therefore regretfully conclude that I can go no further in asserting
Commission authority in this area than this decision has gone.

Velma Montoya

Commissioner

SECRETARY OF LABOR,

Complainant,

v.

BOISE CASCADE CORPORATION

Respondent,

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL 2144

Affected Employees,

UNITED PAPERWORKERS'

INTERNATIONAL UNION, LOCAL 900

Affected Employees,

Docket Nos. 89-3087 & 89-3088

ORDER

STATEMENT OF CASE

On September 7, 1990, an order was issued
directing that affected employees be offered the opportunity of being present as silent
observers during all future settlement negotiations.  Also, the order provided that
any party could seek a hearing if there was a factual dispute as to the extent of the
participation of affected employees here in the settlement process.  On September 17,
1990, Respondent requested reconsideration and a stay (while noting its intent to seek an
interlocutory appeal) of the September 7, 1990 order.  On September 18, 1990, an
order was entered granting the stay of the implementation of the September 7, 1990 order.

On September 26, 1990, affected employees filed
a Verified Motion for Reopening, Access to Information, and Other Relief and affidavits of
their representatives asserting that as a party they were not present during settlement
discussions as envisioned by the order dated September 7, 1990.  Further, the
affected employees requested to be present at all future settlement discussions and that a
hearing be convened to resolve matters at issue.  On September 27, 1990, affected
employees filed their opposition to the motion for reconsideration.

On October 3, 1990, Complainant filed its
pleading supporting Respondent's request for reconsideration and otherwise essentially
reiterating its initial brief.  On October 4, 1990, Respondent filed a letter noting
that its interpretation of the September 18, 1990 stay resulted in the affidavits of the
employees being a nullity given that they were not part of affected employees response to
Respondent's Motion for Reconsideration but were attached to a Verified Motion for
Reopening, Access to Information and Other Relief.  Further, Respondent requested
direction of the court as to the interpretation of the September 18, 1990 stay and whether
a response was required to the motion of the employees.

On October 5, 1990, an order was issued
clarifying that the stay in the September 7, 1990 order only related to requirement that
affected employees be allowed to participate as silent observers in future settlement
discussions.  The order also required that by October 10, 1990, the affected
employees provide complete copies of their September 26 and 27, 1990, pleadings and
supporting affidavits to Complainant and Respondent.  Finally, the order also granted
Complainant and Respondent until October 17, 1990, to file their responses.

On October 10, 1990, the affected employees
complied with the order. [[1]]  On October 17, 1990, Respondent filed its response.
Respondent requested that its Motion for Reconsideration be granted in its entirety.
  Noting that the legal issues raised in its Motion were ripe for decision and that
it should not be required to engage in a time consuming costly "diversion" that
"may well prove to be unnecessary", Respondent urged that its Motion be ruled on
before any factual determination is made based on the affidavits submitted regarding the
extent of affected employee participation in the settlement process.  Accordingly,
Respondent opposed the affected employees request for hearing to determine whether there
has been meaningful participation by affected employees in this matter.

Also on October 17, 1990, Complainant filed its
response to the Verified Motion.[[2]]  Complainant's response rebutted the Perry and
Patrick affidavits relying upon the Freeman affidavit.  On October 17, 1990, given
that the undersigned had yet to rule on Respondent's Motion for Reconsideration, the
Commission denied Respondent's Petition for Interlocutory Review without prejudice.

On October 18, 1990, Respondent initiated a
telephone conference call among and between the parties including a representative of
affected employees.  Respondent proposed, with Complainant concurring, that the
settlement discussion process be restarted with affected employees being present and able
to participate fully, and not simply as silent observers.  Affected employees,
acknowledging that such was a good first step, requested that before restarting the
settlement process they be informed regarding the substance of prior settlement
discussions.  Respondent countered stating that on only June 12, 1990 were
substantive issues discussed during which affected employees were not present and offered
to provide affected employees memoranda which would inform affected employees of the June
12, 1990 discussions.  When questioned by the undersigned as to whether there was
agreement that June 12, 1990 was the only date that affected employees were not present
for settlement discussions, there was dispute as to this and other facts and an impasse
was reached.

As articulated then, the undersigned noted that
Respondent had made a convincing case for resolving the legal issues first and indicated
the court's intention to issue this decision.

On October 19, 1990, responding to Respondent's
concern about "reinventing the wheel" yet while reserving the right to request
such information in the future, affected employees (UPIU) withdrew their request for
"all notes and memoranda relating to settlement discussions so far".  
Further, in order to preclude further delay of the settlement process, UPIU requested full
participation in future settlement discussions.  Finally, UPIU clarified that the
Perry and Patrick affidavits made assertions relevant only to the time periods the
individuals were designated as representatives of affected employees.

APPLICABLE LAW, RULES AND REGULATIONS

The issue here is one of first impression
interpreting the Commission's decision in General Electric Co. , OSHRC Docket No.
88-2265 (August 29, 1990).  In addition to the applicable law, rules and regulations
recited in the September 7, 1990 order which are incorporated herein, the Administrative
Procedure Act ("APA") [5 U.S.C. 554 (c)] also requires that agencies afford
interested parties the opportunity to provide input during the settlement process.  
Further, Commission Rule 101 provides an existing Commission mechanism to resolve issues
arising during the settlement process.

CONTENTIONS OF THE PARTIES

Respondent argues that the September 7, 1990
order exceeds the intent of the Commission's ruling in General Electric (" GE ")
and that GE only requires affected employee "input" at "some point before a
settlement agreement is executed between the Secretary and the employer".  
Respondent further argues that whether affected employees had a "meaningful
opportunity" to participate in the settlement process is a determination to be made
by the administrative law judge only after the complainant and a respondent have
submitted their settlement to the judge.

Otherwise, Respondent contends that the judge is
cast in the role as referee which Respondent asserts to be both "improper and
impractical" and an "unnecessary intrusion" into the settlement process.

Respondent also opposes the Verified Motion of
affected employees arguing that it is a "sweeping request... totally without
basis". Respondent argues that affected employees are here essentially requesting
discovery.  Accordingly, Respondent argues that their requests for information be
controlled by the rules of discovery.  Finally, Respondent argues that the motion by
seeking information beyond the scope of discovery amounted to a "fishing
expedition" by affected employees.

The affidavits submitted by Respondent indicate
affected employee participation until a June 12, 1990 meeting between Respondent and
Complainant.

Complainant essentially asserts that the
September 7, 1990 order may remove opportunities for spontaneous settlements and otherwise
will result in a more a formal process than what is necessary and effective to reaching
settlements.  Complainant also argues that the request for information by affected
employees be treated as and controlled by the rules of discovery.  Finally,
Complainant argues its concern that the hazards cited are not being abated while the
issues here are being debated.

The affidavit of OSHA Area Director C. William
Freeman states that: employee representatives have consistently had input into the
negotiation of this matter; after the citations were issued, his office staff met with
representatives of Respondent and representatives of employees; OSHA solicited and
received the views and priorities of the employee representatives before reaching
settlement with respondent as to certain items; a second meeting with OSHA staff and
employee representatives on the remaining sixteen items in dispute was held; on June 7 and
8, 1990, employee representatives were informed of an impending June 12 settlement
discussion to be held between OSHA staff and representatives of the respondent on these
sixteen items; employee representatives and representatives of the Respondent were also
informed that a subsequent meeting would be scheduled with employee representatives to
discuss the June 12 meeting and that no final decisions would be made on this matter until
then; a June 13 meeting was held between OSHA staff, the OSHA Acting Regional
Administrator for Region I, Stephen Perry, and two union representatives from respondent's
mill during which all substantive facts regarding the matters were reviewed; and that OSHA
canvassed the union and Mr. Perry's views regarding hazards in the workplace, methods of
abatement, and other items germane to subsequent negotiations with respondent.  As a
result, Complainant argues that the only discussions at issue involve Perry who "was
not actually present , as a silent observer, during one conference and one follow-up
telephone call".  Given OSHA's interaction with affected employees, Complainant
argues that employee representatives cannot credibly argue that they have been denied the
opportunity for meaningful participation in the negotiation and resolution of this matter.

The affected employees on the other hand argue
that the Commission in its GE decision ruled clearly that whether affected
employees as a party were permitted to participate in a settlement negotiation was
"clearly within [the judge's] discretion under the Commission's rules."  GE ,
slip op. at 8, n. 4, citing Commission Rule 51, 29 C.F.R. � 2200.51.  
Further, they contend that Respondent's proposed mechanism for applying the GE
standard requires waiting until petitioner and respondent submit a settlement agreement to
the judge which affected employees claim is contrary to the "expeditious, just and
inexpensive determination in every case" given that if it is determined that
meaningful opportunity had been denied, the judge would be required to have the parties
restart the settlement process.  In support they cite Commission Rule 2 and Rule 1 of
the Federal Rules of Civil Procedure.  Finally, the affected employees argue that the
issue of the meaningful opportunity to participate here is not premature, but is ripe for
judicial determination and that in so ruling the September 7, 1990 order correctly applied
the Commission's GE decision to the facts herein.

The affidavits submitted by affected employees
indicate that: one individual designated as a representative for affected employees since
the time of the walkaround [Trawick] had not participated in any discussions since the
informal conference; one individual designated as a representative for affected employees
since the time of the inspection [Cook] had not participated in any settlement discussions
and had not been afforded an opportunity of submitting meaningful input; one employee
designated as a representative for affected employees beginning at an undetermined point
[Patrick] and one individual designated as a representative of affected employees on June
7, 1990 [Perry] had been "totally denied presence at all settlement
discussions".  Accordingly, the affected employees requested "all
memoranda, notes, recordings and information of every kind regarding all such settlement
negotiations now and on a continuing basis, including a list showing dates and locations
of all previous discussions by telephone or in person". Seeking full participation in
future settlement discussions, affected employees (UPIU) dropped their request for the
above information.

DISCUSSION

Respondent's point that the September 7, 1990 order did not afford the parties an
opportunity to include within their briefs the GE decision, given its recent
issuance, is well taken.  Accordingly, its motion for reconsideration is hereby
granted in part.

As a result of Respondent's request for
reconsideration, the parties have had the opportunity of briefing the issues here at hand
in light of the recent Commission GE decision and as a result the undersigned has
benefited from such insights provided by the parties. Accordingly, there appears to be
little basis for requiring further briefing from the parties before ruling.  The
September 7, 1990 order is therefore reconsidered as follows.

Respondent acknowledged that the Commission in
its GE decision envisioned a "mechanism by which employees can be given an
opportunity for participation in the settlement process."  GE slip op. at
7.

Contrary to Respondent's concern that the judge
will become a "referee", Commission Rule 101 provides for a mechanism for
appointing a settlement judge to mediate such issues.  The role of the settlement
judge, as contemplated in Commission 101, comports with the contemporary view of judges as
"case managers" or "managerial judges".  See Resnick, Managerial
Judges, 96 Harvard L. Rev. 374, 378 (1982); Resnick, Managerial Judges and Court Delay:
The Unproven Assumptions , 23-24 Judges Journal 8 (1984-85); Constantino, Judges as
Case Managers , Trial, March 1981 at 56-60.  This contemporary and arguably now
majority view adopted by judges departs from the American legal establishment's embrace of
the classical view of the judicial role personified by the mystic goddess Justicia, who
"carries scales, reflecting the obligation to balance claims fairly; [who] possesses
a sword, giving her great power to enforce decisions; and [who] wears a blindfold,
protecting her from distractions" and who remains "aloof and stoic...
represent[ing] [the] psychological distance between the judge and litigants."  
Resnick, Managerial Judges , supra, at 376 and 383.[[3]]  Today's
"[m]anagerial judges are not silent auditors of retrospective events retold by
first-person storytellers. . . [but] remove their blindfolds and become part of the saga
themselves."  Id . at 408.  This contemporary view is not however
limited to judges designated as settlement judges but contemplates that judges in every
matter before them carry the responsibility of settlement judge.

The 1983 amendment to Rule 16 of the Federal
Rules of Civil Procedure codified the concept that the "trial judge was indeed ruler,
not only of pretrial conference, but of the entire pretrial process."  McKay, Rule
16 and Alternative Dispute Resolution , 63 Notre Dame L. Rev. 818, 823 (1988).  
"Rule 16 was amended in 1983 with the unmistakable purpose of encouraging ADR
[alternative dispute resolution] as a significant part of the judicial process."
  Id. at 824.[[4]]  See also, Peckham, The Federal Judge as a Case Manager:
The New Role in Guiding a Case from Filing to Disposition , 69 California L. Rev. 770
(1981).

Commission Rule 51, as noted in General
Electric , expands the prehearing and scheduling procedures which a judge may direct
under F.R.Civ.P. 16.  While Commission Rule 51 and Rule 16 of the F.R.Civ.P. address
pretrial conferences, they implicate the settlement process as well.  Rather than
straitjacket the agencies settlement process with a formal rule for every agency,
"Congress intentionally left the agencies free to develop the precise manner by which
they implement the opportunity for settlement.  Thus, a single accepted settlement
process or even guidelines within the APA or administrative law do not exist."  
Harter, Neither Cop nor Collection Agent: Encouraging Administrative Settlements
by Ensuring Mediator Confidentiality , 42 ABA Admin L. Rev. 315, 316 (1989) noting the
U.S. Department of Justice "Attorney General's Manual on the Administrative Procedure
Act" 48 (1947), reprinted in the Administrative Conference of the U.S., "Federal
Administrative Procedure Sourcebook" 97 (1985).

Further, support for the requirement that
affected employees be at least silent observers to settlement discussions is found in the
APA at 5 U.S.C. � 554 (c).  Section 554 (c) requires that agencies "give all
interested parties opportunity for-

(1) the submission and consideration of facts,
arguments, offers of settlement, or proposals of adjustment when time, the nature of the
proceeding, and the public interest permit...

The emergent concept of a managerial judge once
instituted here is one that may not only foster quicker or more efficiently reached
settlements, but responsible ones as well.  Contrary to the concerns raised by
Complainant and Respondent that tripartite negotiations will impose "unacceptable
restraints" which will lead the parties to litigate rather than settle, given the
Commission decision in GE , the participation of affected employees as silent
observers may expedite rather than delay settlements.  Further such participation
will certainly allow the parties to reach a more sound agreement as well as give substance
and meaning to the affected employees right to participate in the settlement process.
  Finally, the disruption envisioned by Complainant and Respondent to the settlement
process from inclusion of affected employees as silent observers rings hollow given the
exceptionally few number of cases in which affected employees even seek party status.
  In those few cases where, as here, party status is obtained by affected employees,
a more structured settlement process as established here may prove helpful.  Allowing
affected employees to participate as silent observers from the start of the settlement
process will preclude any restart of the settlement process.

Finally, requiring that affected employees be at
least silent observers does not preclude Complainant and Respondent from allowing affected
employees to participate more fully. Respondent and Complainant may exercise discretion to
allow, without court intervention, expanded participation by affected employees as they
deem appropriate. The mechanism envisioned herein and in the September 7, 1990 order
however is the minimum participation required to insure that affected employees
participation is "meaningful".

Respondent's concern that it and Complainant
will be faced with an "endless 'reinventing of the wheel'" by a

"limitless number of 'employee
representatives' in an OSHA proceeding and that these 'representatives' can step forward
at any time to claim that because they have not personally participated in past
settlement discussions--although other employee representatives have
participated--employees have been precluded from meaningful participation in the
settlement process.

while understood, overstates the problem and is
easily resolved.  The opportunity to participate as a silent observer is granted not
to the particular representative but to the union or group obtaining party status.  
So long as the party has been afforded reasonable notice of any forthcoming settlement
discussions, a representative for that group or union can not later step forward and claim
that because they were not personally present as a silent observer that there has been a
lack of meaningful participation for the union or group.  Likewise, once given such
notice, if a party fails to have a representative present, it forgoes any right to be
informed of the discussions that took place.

Based on the affidavits submitted, there appears
to be no factual dispute that the affected employees were not present for settlement
discussions on at least June 12, 1990.  The affidavit of OSHA Area Director Freeman
indicates that the affected employees were given notice of the June 12, 1990 settlement
meeting, and that affected employees were given ample opportunity to provide input.
However, nowhere did Area Director Freeman indicate that affected employees were informed
as to the substance of the settlement discussions.  Area Director Freeman's affidavit
substantiates the basis for this court's concern as articulated in the earlier order; i.e.
that even an ample opportunity to provide input is meaningless without a foundation of
knowledge (including knowledge of the settlement discussions of the parties) to make the
input meaningful.  Regarding the presence of affected employees at other settlement
discussions, the facts are not clear at this time as to the extent of such discussions and
the extent to which affected employees were present.  Further, in addition to the
presence of employees at the settlement discussions, there appears to be a factual dispute
as to the extent to which affected employees have meaningfully participated vis a vis
their opportunity to provide input.  Respondent and Complainant both seek to have the
order reconsidered here on the basis that affected employees have had meaningful
participation which the affected employees dispute.  However, both Respondent and
Complainant also argue that there should be no hearing to resolve this dispute.  
Respondent's position is based on its desire to seek interlocutory review of the legal
issues.  Complainant on the other hand bases its argument on the position that
affected employees have already been afforded meaningful participation, thereby appearing
to either desire a ruling on the written record or otherwise appearing to beg the issue
generally.  Complainant and Respondent can not have it both ways.  Accordingly,
Respondent's request for reconsideration is hereby granted in part as noted above and
denied in part as contained below.

FINDINGS

Affected employees who had obtained party status while given notice of proposed settlement
discussions, were not allowed to have their representatives (who were duly designated)
present during settlement discussions that took place one June 12, 1990.

CONCLUSION

Given that it is clear that employees were not
present during at least the June 12, 1990 settlement, the matter is ripe for review at
least on both a factual and legal basis regarding this meeting.  Given Respondent's
argument that no further factual determination be made including any hearing to resolve
the other factual disputes, affected employees motion for hearing is denied pending
resolution of Respondent's interlocutory appeal.  Affected employees request for
certain documents and information is granted in part and denied in part as described
below.

Accordingly, the undersigned envisions the
following mechanism for effectuating the Commission's GE decision and implementing
the undersigned's order of September 7, 1990:

1) Once affected employee(s) obtain party
status, from that point forward only, they or their authorized representatives must be
given reasonable notice to observe any and all parts of the settlement process including
any discussions, negotiations or other communications regarding settlement between
petitioner and respondent in person or by telephone conference.

2) Throughout the settlement process, affected
employee(s) or their authorized representatives will have the opportunity to observe [or
in the case of telephone conferences hear] all such communications but will not
participate in such discussions other than as silent observers.

3) If during the settlement process problems
arise regarding the denial of the presence of or regarding the participation of any party,
a party may, by motion pursuant to Commission Rule 101, seek the appointment of a
settlement judge to mediate such problems.  If the appointment of a settlement judge
is objected to by Complainant or Respondent then the judge assigned must resolve the
problems.

4) Prior to the submission of any final
settlement to the judge, affected employee(s) or their authorized representatives will be
afforded the opportunity of providing input to Complainant regarding any and all matters
at issue in addition to the reasonableness of the period of abatement including but not
limited to the inspection, citation(s), and/or other issues arising during the settlement
process.

5) Subsequent to the submission of a settlement
agreement to the judge, affected employee(s) or their authorized representative(s) may
file with such judge their objections as to the reasonableness of the time period
prescribed for abatement.  The issue of the failure of a settlement judge to provide
for or the general issue of meaningful participation by affected employees may be grounds
for an interlocutory appeal.

6) On interlocutory appeal or once a settlement
is approved, the Commission only may entertain any complaint by affected employees that
they were denied meaningful participation.

Given that much of the settlement process here
"has passed under the bridge" and in order to comply with the above settlement
mechanism effectuating the Commission's GE decision as reasonably as practicable
and to encourage efficient disposition of this matter, Complainant including its client
the Occupational Safety and Health Administration and Respondent are hereby ordered to
disclose to the affected employees who have obtained party status all memoranda, notes,
recordings and information of every kind describing the substance of the settlement
discussions of the June 12, 1990 meeting.  Given that this order is issued after
Complainant and Respondent initially disclosed or produced such documents or information
without the knowledge of the consequences of this order, Complainant or Respondent may
seek to limit, beyond what may be excised as noted below, specific documents or
information from being disclosed to affected employees by filing a motion pursuant to
Commission Rule 101 seeking the appointment of a settlement judge to mediate any such
disclosure issue.  Complainant and Respondent may excise from such memoranda, notes,
recordings and any other information being provided, as ordered above, to affected
employees any language contained therein which is not descriptive of the discussions but
which analyzes the settlement process or otherwise might be described as attorney work
product.  Complainant and Respondent will also submit to affected employees an
affidavit of lead counsel for Complainant and Respondent containing a chronology listing
dates and locations of all other settlement discussions by telephone or in person which
have taken place since the issuance of the citations.[[5]]  Finally, settlement
discussions may begin 15 days after the affected employees have received from Complainant
and Respondent the information required above.  Representatives of affected employees
shall be present during the remaining communications comprising the settlement process and
numbers 1) et seq of the above settlement process mechanism shall remain in effect
for the balance of this proceeding.  If affected employees, once having been provided
reasonable notice of an intent of Complainant and Respondent to enter into settlement
communications, chose not to be present nor to be included in any telephone conference,
neither Complainant nor Respondent are under any obligation to apprise such affected
employees of the substance of such communication.

SO ORDERED.

DELBERT R. TERRILL, JR.

Judge, OSHRC

Dated: October 23, 1990

Boston, Massachusetts

SECRETARY OF LABOR,

Complainant,

v.

BOISE CASCADE CORPORATION

Respondent,

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL 2144

Affected Employees,

UNITED PAPERWORKERS'

INTERNATIONAL UNION, LOCAL 900

Affected Employees,

Docket Nos. 89-3087 & 89-3088

ORDER GRANTING EMPLOYEE REPRESENTATIVE'S
REQUEST

TO BE PRESENT DURING ALL SETTLEMENT DISCUSSIONS

STATEMENT OF CASE

On September 13, 1989, Complainant issued
Citations and Notifications of Proposed Penalty to Respondent alleging violations of the
Occupational Safety and Health Act, 29 U.S.C. � 651 et seq ("Act").  
Respondent timely filed with a representative of the Secretary of Labor a notification of
intent to contest the citations and proposed penalties. Complainant and Respondent
subsequently engaged in settlement negotiations to resolve the issues raised in the
citations. A motion for extension of time was granted on May 21, 1990 in order for the
parties to complete the settlement process and to file an anticipated Settlement Agreement
on or before July 12, 1990.

On June 7, 1990, Stephen Perry filed a notice of
appearance as representative of United Paperworkers International Union (UPIU) Local 900.
  On June 7, 1990, an Order was issued designating UPIU, Local 900 as a party to this
matter and the authorized representative of affected employees.

On July 6, 1990, in response to a July 3, 1990
motion for extension of time to file the anticipated Settlement Agreement filed by
Complainant and Respondent, Perry filed a response asserting that the employee
representative has been "completely excluded from any meaningful participation in any
settlement discussions regarding the citations."  A July 12 Order was
subsequently issued ordering all parties to file briefs relating to the issue of rights of
a union with party status in a Review Commission proceeding to participate in settlement
negotiations.

Stephen Perry and UPIU Local 900 filed a brief
on July 31, 1990, in response to the Judge's Order of July 12, in support of its position
that it be accorded full participation in settlement conferences which may be held between
representatives of the Complainant and Respondent to resolve the citations in the instant
matter.  Complainant and Respondent filed briefs in opposition to this position,
stating that authorized employee representatives have no right under the Act to
participate directly in settlement negotiations between Complainant and the employer.

APPLICABLE LAW, RULES AND REGULATIONS

Section 10 (c) of the Act provides employees and their authorized representatives two
alternatives to participate in proceedings before the Review Commission. First, Section
10(c) provides that after a citation has been issued, employees or their representatives
may file a notice of contest "alleging that the period of time fixed in the citation
for the abatement of the violation is unreasonable," and the Commission shall then
"afford an opportunity for a hearing." 29 U.S.C. � 659(c). Secondly, Section
10(c) provides that "the rules of procedure prescribed by the Commission shall
provide affected employees or representatives of affected employees an opportunity to
participate as parties to hearings under this subsection." [[1]] It has been noted
extensively that these two sentences in section 10(c) have caused much controversy
concerning the scope of employee and union rights to participate in Commission
proceedings. [[2]]

Before 1977, the Commission held that it had the
authority to entertain union and employee objections to proposed settlements on matters
other than the reasonableness of the period of time for abatement.  See American
Airlines, 2 BNA OSHC 1391 (Review Commission 1974).  In 1977, the Commission held
that employees' and union's objections to proposed settlement agreements were limited to
challenging the length of the abatement period.  United States Steel Corp. , 4
BNA OSHC 2001 (Review Commission 1977).  In Southern Bell Tel. & Tel. Co .,
5 BNA OSHC 1405 (1977), the Commission held that employees and unions have no right to
object to the Secretary's motion to withdraw a citation.

Subsequently, in its Mobil Oil Corp. , 10
BNA OSHC 1905 (Review Commission, 1982) and IMC Chem. Group , 6 BNA OSHC 2075
(Review Commission, 1980) decisions the Commission overruled its holdings in U.S. Steel
and Southern Bell .

In 1984 the Commission again reversed itself and
overruled the IMC and Mobil Oil decisions in Pan American World Airways ,
Inc ., 11 BNA OSHC 2003 (Review Commission 1984).  In Pan Am, the Commission
noted its alignment with U.S. Courts of Appeal from eight circuits[[3]] which had ruled
that "a union lacks the right to object to the adequacy of the abatement methods
specified in a settlement agreement between the Secretary and an employer, and that a
union may object only to the reasonableness of the abatement period
specified by the agreement." (Emphasis added).  The Commission further held that
"[all] decisions to the contrary are overruled."  Accord, General
Electric Co. , 12 BNA OSHC OSHC 1597 (Review Commission, 1985); Willamette Iron &
Steel Co. , 11 BNA OSHC 1955 (1984) (employees may not object to a change in
characterization of a violation contained in a settlement agreement).  However, in
its 1985 General Electric decision, the Commission also noted that, pursuant to
Rule 10 (c), judge's may direct that unions be permitted to participate in any settlement
negotiations.  General Electric , supra, at n.4.

Rule 100 of the Commission Rules of Procedure,
effectuating the above Commission decisions, explicitly provides that employee objections
to settlements are limited to the reasonableness of the abatement time.  Rule 100 (b)
states:

b) Requirements .  The Commission
does not require that the parties include any particular language in a settlement
agreement, but does require that the agreement specify the terms of settlement for each
contested item, specify any contested item or issue that remains to be decided ... and
state whether any affected employees who have elected party status have raised an
objection to the reasonableness of any abatement time....

29 CFR � 2200.100 (b).  Rule 100 (c) also
declares, in pertinent part:

(c) Filing; Service and notice . ...When a
settlement agreement is filed with the Judge or the Executive Secretary, proof of service
shall be filed with the settlement agreement, showing service upon all parties and
authorized employee representatives...and the posting of notice to non-party affected
employees.... If the time has not expired under these rules electing party status, or if
party status has been elected, an order terminating the litigation before the Commission
because of the settlement shall not be issued until at least ten days after service to
consider any affected employee's or authorized employee representative's objection to the
reasonableness of any abatement time.  The affected employee or authorized employee
representative shall file any such objection within this time.  If such objection is
filed or stated in the settlement agreement, the Commission or the Judge shall provide an
opportunity for the affected employees or authorized employee representative to be heard
and present evidence on the objection, which shall be limited to the reasonableness of
the abatement time .

(Emphasis added) 29 CFR � 2200.100(c).

While affected employees and their authorized
representatives have the right to object to the reasonableness of an abatement period, the
Secretary retains enforcement authority under the Act.  In Cuyahoga Valley Railway
Co. v. United Transp. Union , 474 U.S. 3; 106 S.Ct. 286; 88 L.Ed.2d 2 (1985), the
Supreme Court ruled that the rights created by the Occupational Safety and Health Act are
to be protected by the Secretary, who also has sole responsibility for its enforcement.
  The Court stated:

It is the Secretary, not the Commission, who
sets the substantive standards for the work place, and only the Secretary has the
authority to determine if a citation should be issued to an employer for unsafe working
conditions.  29 U.S.C. � 158.  A necessary adjunct of that power is the
authority to withdraw a citation and enter into settlement discussions with the employer.

Cuyahoga , supra, at p. 288, citing Donovan
v. International union , Allied Industrial Workers (Whirlpool) , 722 F.2d 1415,
1420 (8th Cir., 1983) ; Donovan v. Occupational Safety and Health Review Com'n (Mobil
Oil) , 713 F.2d 918, 927 (2d Cir. 1983).[[4]]  In reversing the Sixth Circuit's
conclusion, the Court stated that the Sixth Circuit's decision "would discourage the
Secretary from seeking voluntary settlements with employers in violation of the Act, thus
unduly hampering the enforcement of the Act." Cuyahoga , at 288.

Recently, the Commission raised the general
issue of union participation in settlement discussions in its very recent decision in General
Electric Co. (Docket No. 88-2265, August 29, 1990).  In this 1990 General
Electric decision, the Commission noted that precedent provided for "meaningful
participation" of employee and employee representatives in the settlement negotiating
process. However, the Commission in this recent General Electric decision further
recognized, "[t]he Commission has never articulated precisely what it meant by
'meaningful participation,' nor has it set forth specifically how employees are to be
included in settlement negotiations."

The Commission in this recent General
Electric decision noted the reason for the ambiguity of these principles.  While
employees are limited as a result of the Pan American decision to objecting only to
the reasonableness of the abatement period, Pan American "did not disturb the
Commission's holdings that employees may participate in the settlement process."
  General Electric , at n.3.[[5]]

As a result the General Electric left
intact the holding of Pan American and left intact Rule 100 which "obligates
the Secretary and the employer to ascertain whether the employees have any objection to
the abatement period, the sole issue on which they have the right to object before the
Commission."  The Review Commission continued by stating:

These comments, however, are not intended to
suggest that there is no mechanism by which employees can be given an opportunity for
participation in the settlement process.  Employees may be given such an opportunity
by allowing them to present their views on a settlement agreement to the other parties,
and particularly to the Secretary, before the agreement is fully executed and filed with
the judge.  This procedure would be consistent with other provisions of the Act that
grant employees input into the decisions the Secretary makes in the interest of
safeguarding employee health and safety...Thus, consistent with the overall scheme of the
statute and the obvious importance of ensuring that employees have a chance to be heard,
we are of the opinion that when enforcement proceedings have been initiated before the
Commission and the Secretary proposes to settle the case, any input offered by the
affected employees should be received at some point before a settlement agreement is
executed between the Secretary and the employer.

General Electric , supra.

The Commission concluded by noting that if
Complainant and Respondent reach a settlement notwithstanding the contrary views of
employees or their representatives, the employees or their representatives may file an
objection with the judge limited to the reasonableness of the period of abatement.  
The Commission will examine a settlement agreement "to determine that the employees
have had an opportunity to provide input during the formulation of the agreement.  In
this way, the legitimate interest of employees in being heard on the terms of a proposed
settlement can be accommodated in a manner consistent with the limited rights of employees
or their representatives to object to a settlement agreement once that agreement has been
filed with the Commission or Commission judge."

CONTENTIONS OF THE PARTIES

In the instant matter, both Complainant and
Respondent recognize that the Review Commission has accorded employee representatives the
right to "meaningful participation in settlements." Reynolds Metals Company ,
7 BNA OSHC 1042 (1979).  They contend, however, that such "meaningful
participation" is fully protected by the notice provisions of Rule 100. [[6]]

The Complainant and Respondent further argue
that the Supreme Court decision in Cuyahoga is dispositive of the issue.  In
that case, the Court held that the Secretary has unreviewable discretion to withdraw a
citation charging an employer with violating the Occupational Health and Safety Act,"
and noted its agreement with decisions of eight other Courts of Appeals which were
consistent with this holding.  Cuyahoga Valley Ry. Co. , supra, at p. 287.[[7]]

UPIU in the instant case does not dispute that
the Complainant has unreviewable prosecutorial discretion to withdraw a citation and enter
into settlement discussions with an employer pursuant to Cuyahoga .  Nor does
UPIU take issue with the Commission's lack jurisdiction to review a citation, penalty or
settlement agreement between the Secretary of Labor and an employer, except as to the
reasonableness of the abatement period set forth in that agreement.  Delco
Electronics Division , 13 BNA OSHC 1639 (1988); Pan American , supra.

The union argues, however, that the issue here,
instead, is the Review Commission Judge's power to require Complainant and Respondent to
open settlement discussions to all parties including employee parties and their
representatives.  UPIU cites Commission Rule 51 as the source of authority for the
ALJ to invoke such an order.  Rule 51 provides in relevant part:

� 2200.51 Prehearing conferences and orders .

... In addition to the prehearing and scheduling procedures set forth in Fed.R.Civ.P. 16,
the Judge may upon his own initiative or on the motion of a party direct the parties to
confer among themselves to consider settlement, stipulation of facts or any other matter
that may expedite the hearing....

29 CFR � 2200.51.  This discretionary rule comports with Rule 100(a), which states
that "[s]ettlement is permitted and encouraged by the Commission at any stage of the
proceedings."  29 CFR � 2200. 100 (a).[[8]]  Further, the preamble to Rule
51 states that it applies to all parties.  51 Fed. Reg. 32009 (1986).

The union advances several strong policy
arguments in favor of allowing its participation in settlement discussions.  These
arguments have been echoed by several commentators on the subject.[[9]]  Most
persuasive is its argument that allowing its participation in settlement discussions is
not the same as invoking judicial review of employee objections to terms in the settlement
agreement other than those having to do with the reasonableness of abatement time.  
"Employees want meaningful participation before the terms become final and
'unreviewable'," the union argues.

DISCUSSION

Complainant's and Respondent's reliance on the Cuyahoga
decision as being dispositive here is misplaced.  The facts in Cuyahoga are
clearly distinguishable.  In Cuyahoga , the Complainant chose to withdraw the
citation and accordingly there was no abatement period on the settlement table.  It
is only when the abatement period is on the settlement table that employees have the right
to participate in settlement discussions.

Objections to the abatement period under Rule
100 (c) must be based on credible evidence.  Much of such evidence will be within the
possession of either Respondent or Complainant and would presumably be discussed during
settlement.  The right of affected employees and their representatives to object to
the reasonableness of the abatement periods can, in part, only be given substance if the
employee or employee representative is given a meaningful basis upon which to formulate
such an objection.  Since the abatement period is necessarily part of a negotiated
settlement, then the employees or their representatives ought to be able to at least be
present to observe the give-and-take of settlement discussions leading to the agreed upon
abatement period.  A right without the opportunity to obtain information upon which
to exercise that right is a meaningless right.

Further, UPIU's position, is consistent with the Commission's recent General Electric
decision .

However UPIU's contention that Commission Rule
51 is appropriate here is also misplaced as to relying on this rule to the initiate
settlement discussions since settlement discussions have already been initiated and nearly
consummated.  However, given General Electric , it is also clear that in
order to assure that affected employees are given proper participation during settlement
discussions, Rule 51 may be used to direct same.

The Secretary notes that from the affidavit of
OSHA Area Director C. William Freeman, it is clear that employee representatives have
consistently had input into the negotiation of this matter.  After the citations were
issued, his office staff met with representatives of respondent and representatives of
employees, at which time Stephen Perry was not an employee representative. OSHA solicited
and received the views and priorities of the employee representatives before reaching
settlement with respondent as to certain items.

A second meeting with OSHA staff and employee
representatives on the remaining sixteen items in dispute was held; on June 7 and 8, 1990,
employee representatives were informed of an impending June 12 settlement discussion to be
held between OSHA staff and representatives of the respondent on these sixteen items.
  Employee representatives and representatives of the respondent were also informed
that a subsequent meeting would be scheduled with employee representatives to discuss the
June 12 meeting and that no final decisions would be made on this matter until then.
  A June 13 meeting was held between OSHA staff, the OSHA Acting Regional
Administrator for Region I, Stephen Perry, and two union representatives from respondent's
mill.  At this meeting, all substantive facts regarding the matters were reviewed;
OSHA canvassed the union and Mr. Perry's views regarding hazards in the workplace, methods
of abatement, and other items germane to subsequent negotiations with respondent.  
The Secretary argues that employee representatives cannot credibly argue that they have
been denied the opportunity for meaningful participation in the negotiation and resolution
of this matter.

CONCLUSION

There is no explicit provision authorizing the Judge to direct that settlement
negotiations be held between parties and employee representatives.[[10]]  Decisional
law of the Circuit Courts of Appeals and the Review Commission as well as the Review
Commission Rules of Procedure consistently pronounce that an employee or employee
representative's objection to a settlement agreement is limited to that which concerns the
reasonableness of the time for abatement.  Given the recent General Electric
decision, it is clear that affected employees and their authorized representatives shall
participate in settlement discussions when they so request.  As articulated above,
that means at a minimum being present for all settlement discussions and at least an
opportunity prior to settlement to present its views to the Secretary.  Such is
"meaningful participation".

It is unclear, given the facts presented,
whether the union was given the opportunity for meaningful participation in the
negotiating process.  It is therefore ORDERED:

1. That within 20 days of the date of this
   order, Local 900 file a notice of election of party status pursuant to Rule 2200.20,
   noting its designation of Stephen C. Perry as its representative pursuant to Rule
   2200.23(a)(3).

2. That within 20 days of the date of this
   order, the authorized employee representative file affidavits or other evidence in support
   of its assertion that it has been denied meaningful participation in settlement
   negotiations.

3. If there is a factual dispute as to the
   actual extent of participation of the affected employee's representatives and if there is
   a desire by any party for a factual hearing on the merits regarding this issue, any party
   may move for a hearing to resolve such factual disputes.

4. If there is no factual dispute regarding
   participation of affected employee's representatives and if in fact such representatives
   have been denied participation consistent with this order, the parties have 15 days after
   the filings complying with numbers 1 and 2 above, to file proposed means to rectify such
   lack of participation.

SO ORDERED.

DELBERT R. TERRILL, JR.

Judge, OSHRC

Dated: September 7, 1990

Boston, Massachusetts

SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,

Complainant,

v.

BOISE CASCADE CORPORATION,

RUMFORD MILL,

Respondent.

UNITED PAPERWORKERS' INTERNATIONAL

UNION, LOCAL 900,

Authorized Employee

Representative.

OSHRC Docket Nos. 89-3087 and 89-3088

Region I

ORDER GRANTING CONSOLIDATION

AND APPROVING SETTLEMENT

Respondent in OSHRC Docket Nos. 89-3087 and
89-3088, by letter dated October 2, 1989, timely contested the Citations issued to it by
Complainant on September 13, 1989.  Respondent also contested the penalties proposed
by Complainant for the Citations.

The parties have moved that these cases be
consolidated for purposes of settlement.  In addition, an executed Settlement
Agreement addressing this case has been received from the parties, and this Agreement
addresses all matters at issue between the parties regarding these cases.  The Motion
and the Agreement having been read and considered, it is

ORDERED: (1) That the parties' Motion is granted
and that these cases are hereby consolidated for settlement purposes;

(2) That the terms of the Settlement Agreement are approved and incorporated as part of
this order;

(3) That the Citation items are affirmed,
modified, or vacated in accordance with the terms of the Settlement Agreement; and

(4) That this Order, pursuant to Section 12(j)
of the Act, 29 U.S.C. � 661(j), shall become the final order of the Commission at the
expiration of 30 days from the date of docketing by the Executive Secretary, unless within
that time a member of the Commission directs that it be reviewed.

Dated this 23rd day of April, 1991.

Richard DeBenedetto

Judge

SECRETARY OF LABOR,

UNITED STATES DEPARTMENT

OF LABOR,

Complainant,

v.

BOISE CASCADE CORPORATION,

RUMFORD MILL,

Respondent.

UNITED PAPERWORKERS' INTERNATIONAL UNION, LOCAL 900, Authorized Employee Representative.

OSHRC Docket Nos. 89-3087 and 89-3088

Region I

MOTION FOR CONSOLIDATION

AND SETTLEMENT AGREEMENT

The parties, BOISE CASCADE CORPORATION, RUMFORD
MILL ("Boise" or "the Company") and its successors; the SECRETARY OF
LABOR, the UNITED STATES DEPARTMENT OF LABOR ("the Secretary" or
"OSHA"); and the UNITED PAPERWORKERS' INTERNATI0NAL UNION, LOCAL 900, by their
undersigned representatives, have reached full and complete settlement of OSHRC Docket
Nos. 89-3087 and 89-3088 under Rule 2200.100, the Occupational Safety and Health Review
Commission's ("the Commission") procedural rule on settlement.
  Accordingly, the parties state as follows:

1. The Commission has jurisdiction of this matter under Section 10 (c), 29 U.S.C. � 659
   (c), of the Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651-678 ("the
   Act").

2. The parties move, pursuant to Commission Rule
   2200.9, that these matters, OSHRC Docket Nos. 89-3087 and 89-3088, be consolidated for
   purposes of settlement.  The two matters have common parties and involve the same
   overall worksite.

3. The Secretary amends the Citations at issue
   in OSHRC Docket Nos. 89-3087 and 89-3088 in accordance with the attached Appendices A, B,
   and C.  In addition, all characterizations of alleged violations as
   "willful" in the Citations are amended by deleting all such characterizations;
   and, except for the final abatement date for each item, all references in the Citations to
   an "Abatement Schedule" are amended by deleting all such references.

4. The total proposed penalty for OSHRC Docket
   Nos. 89-3087 and 89-3088 is amended to $750,000.  One half of the penalty amount, as
   amended, shall be paid within 30 days of the Commission's Final Order in this matter; the
   remaining half of the amended penalty amount shall be paid by July 31, 1991.  Both
   payments shall be made to "DOL-OSHA" and filed with the Augusta, Maine, Area
   Office of OSHA.

5. In addition to the proposed penalty, as
   amended, Boise will give a grant to the Center for Occupational Safety and Health in Maine
   in the amount of $125,000.  The grant shall be by July 31, 1991.

6. Boise specifically denies any and all allegations that it violated the Act.
     Nothing in this Agreement, including the Agreement itself, its execution, as well
   as any final order, is an admission or evidence, nor is it to be construed as an admission
   or treated as evidence, of any fact or of any violation of the Act by Boise, other than in
   a proceeding brought by the Secretary under the Act. Boise withdraws its notice of contest
   to the Citations, as amended; this withdrawal, however, is not intended to be, nor is it
   to be construed as, inconsistent in any way with other language in this Agreement.
     For purposes of proceedings brought by the Secretary under the Act, the parties
   agree to treat the Citations in OSHRC Docket Nos. 89-3087 and 89-3088, as amended, as
   uncontested citations.  This Agreement is being entered into solely to avoid further
   litigation and expense to the parties.

7. There are no citation items in OSHRC Docket
   Nos. 89-3087 and 89-3088 that remain to be decided by the Commission.

8. The parties agree that this Agreement shall
   become a Final Order of the Commission.  Included with this Agreement is a draft
   Order Granting Consolidation and Approving Settlement.  The form and content of this
   draft Order have been negotiated.  The parties hereby consent to the entry of this
   draft Order so that the litigation of this matter may be brought to an end.

9. The parties agree to bear their own
   attorneys' fees, and costs, and other expenses that have been incurred in connection with
   any stage of these proceedings up to and including the filing of this Agreement and entry
   of the Final Order in these matters.

10. Boise certifies that the original Notice of
    Contest as well as all pleadings in OSHRC Docket Nos. 89-3087 and 89-3088, including a
    copy of this Agreement, have been served on affected employees at the Rumford Mill in
    accordance with Commission Rule 2200.7.

Respectfully submitted, this ___ day of ___1991.

Robert G. Gombar

JONES, DAY, REAVIS & POGUE

Metropolitan Square

Counsel for Respondent,

BOISE CASCADE CORPORATION

Robert P. Davis

Solicitor of Labor

Albert H. Ross

Regional Solicitor

Paul J. Katz

Attorney

U.S. DEPARTMENT OF LABOR

Counsel for Complainant,

SECRETARY OF LABOR

Stephen C. Perry

Representative

UNITED PAPERWORKERS'

INTERNATIONAL UNION, LOCAL 900

FOOTNOTES:

[[1/]] The Secretary issued several citations
alleging willful, repeated, serious, and nonserious violations.  The citations
totaled literally hundreds of pages in length, with proposed penalties well in excess of
$1 million.  Boise filed its notice of contest on October 2, 1989.  The parties
originally informed the judge that they expected to reach a settlement by January 30,
1990.  The judge thereafter granted several requests for an extension of time to file
a settlement agreement.

[[2/]] Boise's employees are also represented by
Local 2144 of the International Brotherhood of Electrical Workers ("IBEW").
  The orders entered by the Administrative Law Judge and some of the pleadings filed
in these cases were served on the IBEW, as well as the UPIU, and during the course of
these proceedings the IBEW was included as a party on the case caption.  However, the
IBEW has not filed an election of party status or a notice of appearance.  Although
we invited the IBEW to participate in the oral argument of these cases, it chose not to do
so, nor has it otherwise expressed any interest in these proceedings.  Accordingly,
we conclude that the IBEW should not be treated as an employee party, and we amend the
case caption accordingly.

[[3/]] This conclusion is not intended to
diminish the authority granted a judge by Commission Rule 51, 29 C.F.R. � 2200.51, to
"direct the parties to confer among themselves to consider settlement."
  The judge retains authority to direct the parties to confer under Rule 51, but Rule
51 does not permit the judge to order that employees be included in settlement conferences
between the Secretary and the employer.

We note that in GE , the judge issued an
order directing that employees be included in settlement negotiations, and we briefly
commented in our decision that under Rule 51, such an order was within the judge's
discretion.  14 BNA OSHC at 1766 n.4, 1990 CCH OSHD at p. 38,850 n.4.  However,
we did not in GE decide whether employees are entitled as a matter of right to
participate in settlement negotiations; rather, we simply held that they should be given
the opportunity to provide input.  The purpose of this footnote was merely to support
our view that employees should be allowed to give input.  To the extent that this
footnote may be construed as endorsing any particular method or degree of employee input,
it is dicta in the overall context of GE .

[[4/]] In view of our decision, we do not need
to directly address whether Judge Terrill acted improperly in ordering that the UPIU could
not speak during the settlement negotiations, i.e ., that it was limited to the role
of a "silent observer."

[[5/]] Commission Rule 20(a), 29 C.F.R. �
2200.20(a), provides that employees and their representatives may elect party status to
the limited extent that their appearance relates to "any matter in which the Act
confers a right to participate."  Commission Rule 100(b), 29 C.F.R. �
2200.100(b), provides that a settlement agreement must "state whether any affected
employees who have elected party status have raised an objection to the reasonableness of
the abatement time."

[[6/]] Employees do not need to be given notice
of every settlement discussion in order to effectuate their opportunity for input.
  In view of the fact that the amicable resolution of contested citations will be
facilitated by cooperation among all parties, we are hopeful that employees or their
representatives concerned about their opportunity for input will make their concerns known
in a reasonable and prudent manner in order to avoid undue delay of the settlement
process.  We emphasize that the determination of when to consider a claim regarding
employee input is within the sound discretion of the judge, who is responsible for
ensuring that the proceedings are conducted in both an expeditious and just manner.
  Commission Rule 2(c), 29 C.F.R. � 2200.2(c).  However, the judge must take
into account that input can be received at any time prior to the execution of the
settlement agreement.

[[7/]] One of the issues which we requested the
parties to address at oral argument was whether the judge erred in ordering the Secretary
and Boise to disclose all materials relating to the June 12, 1990 settlement discussion
and in ordering their counsel to submit affidavits providing a chronology of all
settlement discussions occurring since the citations were issued.  However, at oral
argument counsel for the UPIU advised us that the union had withdrawn its request for this
information and that it did not consider a ruling on the propriety of such a request to be
necessary under the circumstances.

[[1]] The affected employees did not send
complete copies of the filings and affidavits to Complainant in that the affected
employees confirmed in a letter to Complainant dated October 10, 1990, that Complainant
had "misspoke" when Complainant had indicated during a telephone conference [for
which call affected employees were not present although efforts were made to have them
present] that it had not received all of the affected employees pleadings.
  Complainant did not dispute the confirmation.

[[2]] Complainant failed to timely file in
accordance with the undersigned's October 5, 1990 order its response dated October 17,
1990 which, however, is nevertheless considered herein.

[[3]] The now predominant and current role of
judges as managers is not without criticism.  Even proponents such as Resnick agree
that this type of "judicial activism" is not unlimited.

[[4]] McKay notes that the term
"alternative dispute resolution" has been misunderstood as a system which must
necessarily exist outside of the judicial system.  He notes, however, that '[w]hile
arbitration and mediation, for example, may be initiated and completed outside the
judicial framework, some of the most promising devices, such as court-annexed arbitration,
summary jury trial, and the various processes of judge-assisted settlement, are all ADR
processes within the judicial system."  Id . at 822.  The ADR concept
is embodied in Commission Rule 101.

[[5]] Once this matter is resolved on
interlocutory appeal, and if this decision is essentially sustained by the Commission,
affected employees will be further and likewise informed of any other meetings for which
they were not present.  Complainant and Respondent will not obligated to disclose to
affected employees settlement discussions engaged in prior to affected employees obtaining
party status.  If different unions or groups of affected employees obtained party
status at different times, the date for obtaining party status shall govern which union or
group of affected employees get what settlement discussion information.  As a result,
it is understood that different unions or groups of affected employees will be entitled to
different dated materials.

[[1]] Rule 20 of the Commission Rules of
Procedure provides for the election of party status by affected employees and authorized
employee representatives.  29 CFR � 2200.20.

[[2]] Mark Rothstein notes that � 10(c) is
"well known to be one of the most poorly drafted and error-filled sections of the
Act. "ROTHSTEIN, Occupational Safety and Health Law (2nd Ed.) � 369, noting H.K.
Porter Co. , 1 BNA OSHC 1600 (1974)  See also, Note, Employee Participation in
Occupational Safety and Health Review Commission Proceedings , 85 Colum. L. Rev. 1317,
1320 (1985) ("The unclear language of the Occupational Safety and Health Act has led
to vacillation by the Occupational Safety and Health Review Commission and a division of
opinion among the circuits that have considered the extent to which employees may
participate in Occupational Safety and Health Review Commission proceedings").

[[3]] The Commission noted Donovan v. OSHRC
(Mobil Oil Corp. ), 713 F.2d 918 (2d Cir. 1983); Donovan v. International Union,
Allied Industrial Workers (Whirlpool Corp. ), 722 F.2d 1415 (8th Cir. 1983); Donovan
v. United Steelworkers (Monsanto Co. ), 722 F.2d 1158 (4th Cir. 1983); Donovan
v. Oil, Chemical & Atomic Workers International Union (American Petrofina Co.) ,
718 F.2d 1341 (5th Cir. 1983); Oil, Chemical & Atomic Workers International Union
v. OSHRC (American Cynamid Co.) , 671 F.2d 643 (D C. Cir. 1982) cert. denied, 103 S.Ct.
206 (1983); Marshall v. Sun Petroleum Products Co. , 622 F.2d 1176 (3rd Cir.) cert.
denied 449 U.S. 1061 (1980); Marshall v. OSHRC (IMC chemical Group) , 635 F.2d 544
(6th Cir. 1980); Automobile Workers v. OSHRC (Ford Motor Co. ), 557 F.2d 607
(7th Cir. 1977).

[[4]] The decision in Mobil Oil
elaborated the rights conferred by the Act upon the Secretary and employees pursuant to
settlement of citations:

[T]he legislative scheme of the Act does not
evidence a Congressional intent to subordinate the Secretary's prosecutorial discretion in
reaching settlement agreements to the rights of employees.  Indeed, allowing
employees to challenge the efficacy of an abatement plan in a settlement would constitute
a continued prosecution of the citation by employees and, hence, is proscribed under the
Act.

[[5]] The Commission also cautioned, however,
that "[n]evertheless, the scope of such participation must be viewed in light of the
limited opportunity employees have to object to fully executed settlements before the
Commission, as well as the limited role of the Commission in reviewing settlement
agreements that have been filed with the Commission or a Commission judge for
approval." General Electric , at n.3

[[6]] Respondent notes that there has been
language in Review Commission decisions to suggest that such meaningful participation
includes the right to take part in settlement negotiations.  See, General Motors
Corp., Terex Division , 10 BNA OSHC 2020 (Review Commission, 1982).  Respondent
notes that the decision in General Motors was directed for review in order to
determine whether the union had been given an opportunity "for meaningful
participation in the settlement process in accordance with Rule 100 (c)."  In
addition, that the basis for the Review Commission's remand in General Motors was
its decision in Mobil Oil Corp . which was later overturned by the Second Circuit.
  See also, Asarco, Inc. , 8 BNA OSHC 2200 (Review Commission, 1980); ITT
Thompson Industries, Inc., 6 BNA OSHC 1944 (1978).

[[7]] The Supreme Court noted decisions of the
Seventh, Eleventh, Eighth, Fourth, Fifth, Second, Third, and D. C. Circuits in reviewing
the Sixth Circuit's decision in Donovan V. United Transportation Union , 748 F.2d
340 (1984).  The Supreme Court reversed the Sixth Circuit's holding that the
prosecutorial discretion of the Secretary ends with the decision to issue a citation and
that once an employer has initiated a contest, the Review Commission may hear all
objections raised by employees or their representatives who have elected party status and
may review the Secretary's withdrawal of the citation.

In the Second, Third, Fourth, Seventh, Eighth,
and Eleventh Circuits, employee rights at the adjudicatory stage and in opposition to
settlements are limited to challenging the reasonableness of the abatement date whether
the initial notice of contest is filed by the employer or by employees.  In the Fifth
Circuit, however, employees who elect party status after the employer initiates a notice
of contest may "litigate fully" the merits of the citation and the terms of the
settlement agreement.  Donovan v. Oil, Chem, and Atom . Workers Intern ,
718 F.2d 1341 (5th Cir. 1983).  The Court analogized the position of an employee in
this case to an intervenor of right under Rule 24 (a) of the Federal Rules of Civil
Procedure, who "is treated as if he were an original party and has equal standing
with the original parties."

However, the Court ruled that once an employer
withdraws its notice of contest pursuant to settlement, "[t]he employee is in a
position analogous to an intervenor in a civil lawsuit in which the original parties have
settled or sought dismissal."  Thus, if the employer withdraws its notice of
contest, the Court stated that it was constrained by the decisions of the aforementioned
Circuits to hold that the employees are limited to challenging the abatement period and
the Commission loses jurisdiction to entertain the employees' petition for review of the
settlement agreement's terms.

[[8]] This is also consistent with Fed.R.Civ.P.
16(a) which allows the court in its discretion to direct attorneys and unrepresented
parties to appear before it for a pretrial conference for such purposes, among others, as
"(5) facilitating the settlement of the case." Rule 16(c) states that a subject
to be discussed at a pretrial conference may include, "(7) the possibility of
settlement or the use of extrajudicial procedures to resolve the dispute."

[[9]] Rothstein notes that the majority of
employee challenges in adjudicatory proceedings involve the method rather than the time
for abatement.  "Indeed," he notes, "the time for abatement is
irrelevant if the method is inadequate.  Both the first and last sentences of �
10(c) should be read together to mean that employees and unions may challenge the method
of abatement in employee and employer contests."  He notes that a consistent
reading of the first and last sentences of � 10(c) would be resolved in this manner:
"[i]mplementation of an inadequate plan called for in a citation would mean that a
citation is never abated.  "Never" is too long and therefore
constitutes an unreasonable abatement date under � 10 (c). See ROTHSTEIN, supra, � 369,
1988 pocket part.

See also 85 Columbia L. Rev. 1317, supra, in
which the author proposes that the Act gives the Review Commission jurisdiction to hear
any employee objection to the terms of a settlement agreement in that the Review
Commission has power to issue all final abatement orders.  "Because an
employer-initiated contest must continue for [the Review Commission] to approve a
settlement, employees, participating as "parties," are entitled to object to all
aspects of a settlement agreement."

See, Judge Pollak's dissent in Marshall v.
Sun Petroleum Products , 622 F.2d 1176 (1980).

[[10]] Rule 101 concerning "Settlement
Judge procedure", which prescribes procedures by which parties may obtain the
assistance of mediation by a Settlement Judge, is the only rule to directly address this
issue.  With both parties' consent, a settlement conference may be scheduled. Rule
2200.101 (c) (2) states in part that "The Settlement Judge may recommend that the
attorney or other representative who is expected to try the case for each party be
present, and, without regard to the scope of the attorney's or other representative's
powers, may also recommend that the parties, or agents having full settlement authority,
be present...." This rule, however, is inapplicable to the circumstances in the
instant matter.