Metal Goods Service Centers, Div. Of Alcan Aluminum Corp.

Plain-English summary

The ALJ approved a settlement before affected employees had received the required 10-day notice and opportunity to comment. The Commission held that the approval was premature and remanded the case to preserve employee rights under Commission precedent. The official release also includes the later remand proceedings. After the amended agreement was posted and served, an employee objected to reducing the cited welding violation from serious to other-than-serious. The ALJ found that the Secretary had considered the objection and that employees could challenge only the reasonableness of abatement before the Commission, an issue not present because abatement was complete. The amended settlement was then approved with a $200 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.252(d)(2)(vi)(c)
• Outcome: Original settlement approval remanded for employee notice; amended settlement later approved after notice with a $200 penalty.
• Key point: A settlement cannot be approved before affected employees receive the required notice and opportunity to comment.

Full text (OSHRC public release)

Docket No. 90-0832

SECRETARY OF LABOR,

Complaint,

v.

METAL GOODS SERVICE CENTERS,

DIV. OF ALCAN ALUMINUM CORP.,

Respondent.

OSHRC DOCKET NO. 90-0832

ORDER OF REMAND

Before: FOULKE, Chairman; MONYOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

On August 28, 1990, Administrative Law Judge Stanley M.
Schwartz approved a settlement agreement between the parties.  Due to an error in the
settlement agreement, Judge Schwartz's approval was premature.  Affected employees
had not been given 10 days' notice of the settlement.  The case must therefore be
remanded to ensure that the rights of affected employees are preserved.  E.g.,
General Electric Co., 14 BNA OSHC 1763, 1990 CCH OSHD � 29,072 (No. 88-2265, 1990).

Therefore, this case is remanded to Judge Schwartz for further
proceedings consistent with Commission precedent on the issue.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated:     January 11, 1991

SECRETARY OF LABOR,

Complaint,

v.

METAL GOODS,

Respondent.

OSHRC DOCKET NO. 90-0832

ORDER

SCHWARTZ, Judge:

The parties have submitted a settlement agreement pursuant to
Rule 100 of the Rules of Procedure.  The agreement meets the requirements of the
Commission for hospitable consideration of settlements.  No objection has been
received from affected employees.  The settlement agreement is approved and
incorporated herein by reference.

So ORDERED.

STANLEY M. SCHWARTZ

Administrative Law Judge

Date:    August 28, 1990

SECRETARY OF LABOR

Complainant,

v.

METAL GOODS,

Respondent.

OSHRC DOCKET NO. 90-0832

APPEARANCES: Jamison Ann Milford, Esquire

Kansas City, Missouri

For the Complainant.

Julie A. Emmerich, Esquire

St. Louis, Missouri

For the Respondent.

DECISION AND ORDER

SCHWARTZ, Judge:

This case is on remand from the Occupational Safety and Health
Review Commission ("the Commission") pursuant to � 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. � 651 et seq. ("the Act"). The purpose
of the remand is to ensure that, prior to approving the settlement agreement submitted by
the parties, the rights of affected employees have been preserved.

The Secretary and the Respondent have submitted an Amended
Stipulation and Settlement Agreement, which is incorporated herein by reference as
"Attachment A." The agreement was served on all parties and on the authorized
employee representative, and was also posted at Respondent's workplace on April 3,
1991.[[1]] Pursuant to the agreement, the Secretary amended the citation from a serious to
a nonserious violation, and Respondent withdrew its notice of contest. One of Respondent's
employees, Richard Roberts, objected to the amendment in a letter to the Commission, which
is included in Attachment A. In view of Roberts' objection, the issue to be determined is
whether approval of the agreement is consistent with Commission precedent regarding the
rights of affected employees.

Affected employees or their representatives have the right to
participate in settlement negotiations. See Boise Cascade Corp., 14 BNA OSHC 1993,
1991 CCH OSHD � 29,222 (Nos. 89-3087 and 89-3088, 1991); National Steel &
Shipbuilding Co., 14 BNA OSHC 1866, 1990 CCH OSHD � 29,127 (Nos. 88-227 et al.,
1990); General Electric Co., 14 BNA OSHC 1763, 1990 CCH OSHD � 29,072 (No.
88-2265, 1990). However, as prosecutorial discretion in the enforcement of the Act is
vested solely in the Secretary, the Commission and employees have only limited roles in
the settlement process. Id. Consequently, as long as employee input has been
considered, the Secretary may arrive at an agreement with the employer notwithstanding the
contrary views of employees, and the sole objection employees may make to a settlement
agreement before the Commission is in regard to the reasonableness of the abatement
period. Id.

In this case, the settlement was served on the authorized employee representative and
posted at the workplace as required by the Commission's Rules of Procedure. The only
objection of record to the settlement was that of Roberts. The agreement, at page 2, item
3, notes his objection as follows:

[T]he parties have received, reviewed and considered the letter and attachments from
respondent's employee Richard D. Roberts (copy attached) wherein Mr. Roberts objects to
that part of this settlement wherein the Secretary modifies item 1 of serious citation
number 1 to an other than serious citation.

Since the Secretary considered Roberts' objection, she has done
all that the Act requires in regard to his participation in the settlement process. The
fact that she reached a settlement in spite of the objection is no basis for rejecting the
agreement. I have also considered the nature of Roberts' objection concerning the
reduction of the classification from serious to nonserious. The Commission's jurisdiction,
as noted above, is limited to reviewing objections from employees or their representatives
only with respect to reasonableness of the abatement period. Such is not the case here, as
the agreement states that the condition has been abated and there is no claim to the
contrary.

It is found that the Amended Stipulation and Settlement
Agreement submitted by the parties meets the requirements of the Commission for hospitable
consideration of settlements. Accordingly, the settlement agreement is approved. So
ORDERED.

STANLEY M. SCHWARTZ

Administrative Law Judge

DATE: MAY 28 1991

SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,

Complainant,

v.

METAL GOODS SERVICE CENTERS

A DIVISION OF ALCAN ALUMINUM CORP.,

Respondent.

OSHRC DOCKET

NO. 90-0832

AMENDED STIPULATION AND SETTLEMENT AGREEMENT

The Secretary of Labor, United States Department of Labor, hereinafter referred to as the
"Secretary," and Metal Goods Service Centers, hereinafter referred to as the
"respondent," stipulate and agree as follows:

1. (a) Based upon a reevaluation of the evidence, the Secretary
   hereby modifies item 1 of serious citation number 1 by changing said citation to an other
   than serious violation of section 1910.252(D)(2)(vi)(c) with a $200.00 penalty. The
   citation is amended accordingly.

2. Respondent hereby withdraws its notice of contest to the
   citation and notification of proposed penalty, as amended herein. In support of its
   withdrawal, respondent states:

(a) That the abatement of item 1 of citation number 1 has been
accomplished. There being no cited conditions which remain unabated at the time of
execution of the agreement, the matter of unreasonableness of abatement is not at issue.

(b) That a copy of this stipulation and settlement agreement
was posted at respondent's workplace on April 1, 1991, at 8800 Page Boulevard, St.
Louis, Missouri where it may be viewed by its employees; that affected employees are
represented by Teamsters Local 688; and, that a copy of this stipulation and settlement
agreement has been served on Teamsters Local 688, 300 South Grand, St. Louis, Missouri
63103 by prepaid, first class mail this 26th day of March 1991.

(c) That it has tendered payment of the total penalty of
$200.00 to the Secretary's representative.

3. That the parties have received, reviewed and considered the
   letter and attachments from respondent's employee Richard D. Roberts (copy attached)
   wherein Mr. Roberts objects to that part of this settlement wherein, the Secretary
   modifies item 1 of serious citation number 1 to an other than serious citation.

4. Respondent takes the position that for purposes of actions
   other than actions or proceedings under the provisions of the occupational Safety and
   Health Act of 1970 (hereinafter OSHA), nothing contained herein shall be deemed an
   admission by respondent that respondent violated the Act or its regulations or standards.
   The parties further agree that this Stipulation and Settlement Agreement will not be used
   by either party as evidence in any action other than actions or proceedings under OSHA.

5. The secretary and respondent agree that based on the
   foregoing representations of respondent, an order may be entered of record showing that
   respondent has withdrawn its notice of contest and entering the citation and notification
   of proposed penalty, as amended herein, as a final order of the Commission.

6. Further, each party hereby agrees to bear her or its own
   fees and other expenses incurred by such party in connection with any stage of this
   proceeding. Dated this 26th day of March, 1991.

Robert P. Davis

Solicitor of Labor

METAL GOODS SERVICE CENTERS

A Division of Alcan Aluminum

Corporation

Tedrick A. Housh, Jr.

Regional Solicitor

Julie A. Emmerich

Frank L. Pelligrini, P.C.

Attorneys for Respondent

Jamison Ann Milford Attorney

Attorneys for Secretary of Labor,

U.S. Department of Labor

NOTICE TO EMPLOYEES OR EMPLOYEE REPRESENTATIVE

The attached stipulation and settlement agreement has been
executed by the parties hereto, and has been submitted to the Occupational Safety and
Health Review Commission for entry as a final order. If you have any comments on the
stipulation and settlement agreement, you may submit them within ten days of service or
posting of the stipulation to:

Judge Stanley M. Schwartz

Occupational Safety and Health

Review Commission

A copy of such comments should also be sent to:

Tedrick A. Housh, Jr.

Regional Solicitor

U.S. Department of Labor

Served and/or posted this 1st day of March, 1991.

April 3, 1991

DELIVERED VIA FACSIMILE #(214) 767-0350

Judge Stanley M. Schwartz

Occupation Safety and Health Commission

RE: Secretary of Labor v. Metal Goods

OSHRC Docket No. 90-0832

Dear Judge Schwartz:

This will confirm our telephone conversation of this date,
wherein I stated to you that the Amended Stipulation and Settlement Agreement, which the
parties filed on or about March 27, 1991, had not been posted for the employees on April
1, 1991 as the Agreement had indicated. George Giltinan, the Safety Director for Metal
Goods and addressee of the Agreement, was on vacation until April 3, 1991 and did not
receive the Agreement in time to post it by April 1st. I failed to confirm with him that
he or someone else would be present to receive and post the Agreement.

Based on these facts, you indicated that we could rectify the
situation by stating to you by letter that the Agreement will now be posted on April 3,
1991, and that April 3rd would be used for purposes of computing the time for employee
objections to the Agreement.

I have forwarded a copy of this letter to Metal Goods for
posting along with the Amended Stipulation and Settlement Agreement. In addition, I have
forwarded copies to Jamie Milford, Attorney for the Department of Labor, and the Teamsters
Local 688. If you require additional information, please do not hesitate to call.

Sincerely yours,

Julie A. Emmerich

Judge Stanley M. Schwartz

Occupational Safety and Health Commission

April 3, 1991

cc: Jamie Milford

U.S. Department of Labor

Office of the Solicitor

Teamsters Local 688

George Giltinan

Division Safety Coordinator

Case Name: Metal Goods

OSHRC Docket No.: 90-0832

Employer:

Julie A. Emmerich, Esq.

Frank L. Pellegrini

I hereby certify that a copy of the decision in this case has
been mailed to the parties whose names and addresses appear on this notice, by first class
mail.

Regional Solicitor:

Jamison Ann Milford, Esq.

Office of the Solicitor

U. S. Department of Labor

Authorized Employee Representative:

Daniel J. Mick, Esq.

Counsel for Regional Trial Litigation

Office of the Solicitor, USDOL

FOOTNOTES:

[[1]] Although the agreement states that it was posted at the workplace on April 1, 1991,
a letter from Respondent's attorney, incorporated herein by reference as "Attachment
B," explains that the agreement was not actually posted until April 3, 1991.