A. E. Staley Mfg. Co.

Plain-English summary

The Secretary and A. E. Staley Manufacturing reached a settlement that an administrative law judge approved. The authorized employee representative, Allied Industrial Workers Local 837, sought review and argued that it had been denied meaningful participation. The record showed that the union received a draft agreement about three months before execution, attended a settlement conference, stated its objections, and met privately with the Secretary's counsel to discuss them further. The union did not challenge any abatement term or date. The Commission held that the union had received the opportunity for input required by Commission policy and affirmed the settlement approval. The official text does not identify the underlying standard, citation disposition, or penalty terms.

Decision snapshot

• Cited standard(s): None identified in the order.
• Outcome: Settlement approval affirmed; substantive citation and penalty terms are not reproduced.
• Key point: An employee representative receives sufficient settlement participation when it can review the draft and present objections before execution, while Commission objections after that opportunity are limited to abatement reasonableness.

Full text (OSHRC public release)

Docket No. 90-2129

SECRETARY OF LABOR,

Complainant.

v.

A. E. STALEY MFG. CO.,

Respondent.

ALLIED INDUSTRIAL WORKERS

OF AMERICA, LOCAL UNION NO. 837,

Authorized Employee Representative.

OSHRC Docket No. 90-2129

ORDER

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

BY THE COMMISSION:

Review Commission Administrative Law Judge Louis
LaVecchia approved a settlement agreement between the Secretary of Labor and the
Respondent, A. E. Staley Manufacturing Co. ("Staley"), in this case. The Allied
Industrial Workers of America, Local Union No. 837 ("AlW"), the authorized
employee representative in the case, requested in writing that the Commission review the
circumstances surrounding the settlement agreement. The AIW maintains that its rights to
participate in the case were denied. The AIWs' letter was construed as a petition for
discretionary review, and review was directed under 29 U.S.C. � 660(j).

In his order approving the settlement agreement, the
judge did not address the AlWs contentions that it had been denied its opportunity to
provide input on that agreement before it was finalized and executed by the Secretary and
Staley. However, upon review of the record, we find that the AIW was clearly afforded an
opportunity to participate in the settlement process, as that opportunity was established
by the Commission in Boise Cascade Corp., 14 BNA OSHC 1993, 1991 CCH OSHD � 29,222 (No.
89-3087, 1991). Thus, we affirm the judge's order. [[1]]

In Boise Cascade, the Commission held that "it
is the Secretary who is responsible for protecting the interest of employees in safe and
healthful working conditions.... The discretion to settle a case pending before the
Commission is an adjunct of the Secretary's prosecutorial and enforcement authority."
14 BNA OSHC at 1995, 1991 CCH OSHD at p. 39,121. The Commission held that it can
"review the Secretary's actions in this regard to determine whether the Secretary has
abused his discretion." 14 BNA OSHC at 1997, 1991 CCH OSHD at p. 39,123. However, the
Commission concluded that it would not be proper "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." 14
BNA OSHC at 1998, 1991 CCH OSHD at p. 39,124.

We find that the Secretary's counsel extended to the
AIW a sufficient opportunity for input on all aspects of the proposed settlement, before
it was finalized and executed. A document entitled "Affidavit," signed by the
Secretary's counsel, Stephen Walanka, was submitted to the judge. It describes the
settlement process and the AlW's role in it. The document states, among other things, that
Mr. Walanka spoke with AlW's representative, Milan Racic, about the case from its early
stages; that Mr. Racic received a copy of the draft settlement agreement in October, 1991,
about three months before the Secretary signed the final version. that Mr. Racic and other
AlW officials attended a conference with Staley and the Secretary's counsel in November,
1991, at which the union's objections to the settlement were expressed; and that the AIW
officials then met privately with the Secretary's counsel to go over their objections
further. Those objections did not go to any abatement matters, including the
reasonableness of the abatement date.

Mr. Racic discussed that document in detail in a
letter to the judge. However, he did not dispute the statements mentioned above. Those
statements, made under penalty of perjury, show that the AIW was given a sufficient
opportunity to provide input on the settlement agreement, before it was finalized and
executed by the Secretary and Staley. Cf. Ficks Reed Co., 14 BNA OSHC 2222, 1991 CCH OSHD
� 29,305 (No. 90-1337, 1991) (where AlW claimed that it had been denied the opportunity
for input on settlement agreement, Commission gave AlW opportunity, because judge had
approved settlement agreement before Commission announced its current policy).

As the judge noted, the AlW does not contend here
that the period permitted for abatement of the violation is unreasonable. Cf. General
Electric Co., 14 BNA OSHC 1763, 1765, 1990 CCH OSHD � 29,072, p. 38,849-50 (No. 88-2265,
1990) (once employees have had sufficient opportunity for input into settlement agreement,
they may only object before Commission to the reasonableness of the abatement period set
forth in that agreement).

Thus, we affirm the judge's order approving the
settlement agreement between the Secretary and Staley in this case.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: May 21, 1992

SECRETARY OF LABOR,

Complainant.

v.

A. E. STALEY MFG. CO.,

Respondent.

ALLIED INDUSTRIAL WORKERS

OF AMERICA, LOCAL UNION NO. 837,

Authorized Employee Representative.

OSHRC Docket No. 90-2129

ORDER

The objections filed by the Union to the Settlement
Agreement presented to me for approval by the Secretary and the Respondent in this matter
have been considered. Since the objections do not address abatement periods I am
constrained to find them irrelevant.

The Settlement Agreement is approved.

So ORDERED.

Louis G.LaVecchia

Administrative Law Judge

Date: March 30, 1992

FOOTNOTES:

[[1]] "The Commission ordinarily will request
the parties to file briefs on issues before the Commission." Commission Rule 93(a).
29 C.F.R. � 2200.93(a). However, requesting briefs on review is discretionary with the
Commission. In this case, we have determined that brick are unnecessary. The record below
is clear that the AIW'S was given the necessary opportunity for input on the proposed
settlement agreement. The AIW's letter requesting Commission review actually corroborates
that fact, because it states, "we stated our objections [regarding the settlement
agreement] to the Solicitor, Region V ....." Thus, this case may be decided without
briefs on review.

[[2]] In its Motion to Vacate Direction for Review.
Staley assert that the AlW fail to serve it with a copy of its letter to the Commission.
The Commission's Rules of Procedure require service. on all other parties and intervenors,
of a copy of all documents that are filed with the Commission. 29 C. F. R. � 2200.7(a).
In view of our disposition of this case. we need not resolve whether Staley objection is
well-founded. Because the only reasons given by Staley in this motion for vacating the
direction for review relate the lack of service of the petition. we deny Staley's motion
as moot.