Ormet Primary Aluminum Corp., Hannibal Reduction Division (Commission decision, September 21, 2000)

Plain-English summary

Ormet Primary Aluminum's Hannibal Reduction Division faced a five-item serious OSHA citation. Ormet and the Secretary of Labor signed a settlement that affirmed three items with penalties and withdrew the other two. The steelworkers union, which had elected party status, refused to sign and objected in writing to the withdrawal of the two items. Judge Cook approved the settlement on April 10, 2000, but did not receive her copy of the union's objection letter until about ten days later. Giving the union the benefit of doubt on whether its letter was timely, the Commission majority remanded so the judge could consider objections she had not seen when she approved the settlement. Commissioner Visscher dissented, reasoning that under the Supreme Court's Cuyahoga Valley decision the Commission cannot review the Secretary's choice to withdraw a citation, so the approval should simply have been affirmed.

Decision snapshot

• Cited standard(s): None cited. The decision turns on settlement procedure under Commission Rule 100 (29 C.F.R. § 2200.100), not a specific safety standard.
• Outcome: Case remanded to the ALJ to consider the union's objections before ruling on the settlement.
• Key point: The Commission remanded this settlement because the judge had approved it without seeing the union's objections and the union received the benefit of doubt on timeliness.

Full text (OSHRC public release)

______

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 99-1566

ORMET PRIMARY ALUMINUM
CORPORATION, HANNIBAL
REDUCTION DIVISION,
:

Respondent,

USWA LOCAL 5724,
Authorized Employee
Representative.

DECISION
Before: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners. BY THE COMMISSION:
On April 10, 2000, Judge Ann Z. Cook issued an order approving a settlement agreement regarding a serious citation issued to Ormet Primary Aluminum Corporation (“Ormet”).1 The settlement agreement was submitted to the judge for approval on March 24, 2000, and signed by both Ormet and the Secretary of Labor. The United Steelworkers of America (“Union”), who had elected party status in the case, had refused to sign the agreement.

1
In the approval order, the judge specifically stated that “no objection to the settlement has been filed.” 2

Copies of the settlement agreement were sent by the Secretary to the Union on March 17, 2000. In a letter dated March 21, 2000, and on which the judge was copied, the Union notified the Secretary of its refusal to sign the agreement and stated specific objections to two citation items which had been withdrawn by the Secretary pursuant to the agreement. The Secretary referenced the Union’s correspondence in her March 24, 2000, letter to the judge, in which approval of the settlement agreement was requested:
By letter directed to the undersigned, dated March 21, 2000, and on which you were copied, you should have received notice that although given the opportunity to do so, the Authorized Employee Representative has elected not to sign the Agreement.
However, the judge did not receive her copy of the Union’s letter until April 20, 2000, ten days after the agreement was approved.2 On April 25, 2000, the Union’s objections were forwarded by the judge to the Commission’s Executive Secretary, who circulated the Union’s letter to Commission members as a petition for discretionary review. On April 26, 2000, the case was directed for review.
Commission Rule 100, 29 C.F.R. § 2200.100, governs the handling of settlement agreements. Subsection © of Rule 100 specifically states that where party status has been elected by an authorized employee representative, an order terminating the litigation before the Commission because of the settlement shall not be issued until at least 10 days after service or posting to consider any...authorized employee representative’s objection to the reasonableness of the abatement time. The...authorized employee representative shall file any such objection within this time.
Here, the judge’s approval of the settlement agreement was issued well beyond the required ten-day period, but prior to receipt of her copy of the Union’s letter. Because we are unable to determine the date the Union’s letter stating its objections was mailed to the judge, we accord the Union the benefit of any doubt as to its timeliness, especially where the record

2
It is not clear why receipt of the judge’s copy of the Union’s letter was delayed. We note that the envelope in which this correspondence arrived at the Commission was not retained for the case file. Therefore, we cannot determine when the Union actually mailed the judge her copy of its letter.
3

shows that the Secretary received her copy of the letter within the allotted time for filing objections. Although we also recognize, as noted by our dissenting colleague, that the Union’s objections pertain to the Secretary’s withdrawal of two citation items, we note that the Union’s objections were sent to the judge and it was the judge who approved the settlement agreement without having an opportunity to consider them.
Under these circumstances, we conclude that the judge should be given an opportunity to rule on the Union’s letter. Therefore, in accordance with our usual practice in such cases, we remand the case to the judge for consideration of the Union’s objections in light of extant case law. See Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3 (1985).

/s/
Thomasina V. Rogers
Chairman

/s/
Stuart E. Weisberg
Commissioner

Dated: September 21, 2000
4

VISSCHER, Commissioner, dissenting:
In a letter dated March 21, 2000, a representative of the United Steel Workers of America advised the Regional Solicitor that his union was refusing to sign the settlement agreement in this case because it provided for the Secretary’s withdrawal of two citation items. The letter states no other objection to the settlement agreement. In Cuyahoga Valley Ry. Co. v. United Transportation Union, 474 U.S. 3 (1985), the Supreme Court ruled that the Commission lacks authority to review a decision by the Secretary to withdraw a citation, and reversed a Commission decision to reinstate a citation that was based upon a union’s objection.
The majority is willing to assume that the March 21 letter, which was not even addressed to the Commission, was intended to state objections to the settlement agreement as provided for in Rule 100© of the Commission’s Rules of Procedure, 29 C.F.R.
§ 2200.100(c). Even if they are correct, this case would clearly be controlled by the Cuyahoga decision. As the Commission cannot reinstate a withdrawn citation, I see no reason that the judge’s decision to approve the settlement agreement should not be affirmed by the Commission.

/s/
Gary L. Visscher
Commissioner

Dated: September 21, 2000
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. Docket Nos. 99-1566

ORMET PRIMARY ALUMINUM CORP.,

Respondent.

.
ORDER APPROVING SETTLEMENT AGREEMENT

The Commission has jurisdiction over the subject matter of the case and over the parties by virtue of the filing of a timely notice of contest.

The stipulated sehlement between the parties filed on March 24, 2000, has been considered. i he parties certify that affected employees were properly notified of the settlement on or about March 17, 2000. No objection to the settlement has been filed.

The settlement is approved under 5 U.S.C. § 554(c)(1) and Commission Rule 100.' The terms of the stipulated settlement are incorporated, in their entirety, by reference in this order.

ANN Z. COOK
Judge

DATED: 10 APR 2000
Washington, D.C.

____________
______
1 Rules of Procedure of the Occupational Safety and Health Review Conunission, 29 CF.R. §§ 2201.1

• .212, as amended, 55 Fed. Reg. 22789 – 4 (June 4, 1990).
  Before The
  Occupational Safety And Health Review Commission
  United States Of America

SECRETARY OF LABOR,
Complainant,

vs. OSHRC Docket No. 99-1566
Inspection No. 112540570

O'RMET PRIMARY ALUMINUM CORPORATION,
HANNIBAL REDUCTION DIVISION,
Respondent,
and

USWA LOCAL 5724,
Authorized Employee Representative.

STIPULATION AND SETTLEMENT AGREEMENT

In full disposition and settlement of the issues in this proceeding, it is hereby

stipulated and agreed by Complainant, Secretary of Labor, and Respondent, Ormet Primary

Aluminum Corporation, Hannibal Reduction Division, that:

1. Citation 1, Item 1 shall be affirmed as a serious violation with a penalty of

$ 1,700.00.

2. Citation 1, Item 2 shall be affirmed as a serious violation with a penalty of

$1,275.00.

3. Citation 1, Item 3 shall be affirmed as a serious violation w-with a penalty of

$ 1,700.00.

4. Citation 1, Item 4 shall be withdrawn and vacated by the Secretary.

5. Citation 1, Item 5 shall be withdrawn and vacated by the Secretary.

6. Respondent represents that the violations set forth in Citation 1, Items 1- 3
   have been abated.

7. Respondent hereby withdraws its notice of contest and the parties agree to the
   entry of a ftnal order consistent with the terms of this Stipulation and Settlement Agreement.

8. Respondent agrees that the total amended penalty of $4,675.00 shall be paid within 30
   days after the entry of a final order approving this settlement.

9 Respondent hereby certifes that a copy of this Settlement Agreement will be posted at its worksite within three days of the execution of this Agreement to afford notice to affected employees

10. Each party hereby agrees to bear its own fees and other expenses incurred by such party in
    connection with any stage of this proceeding.

11. It is acknowledged that the parties are entering into this Stipulation and Settlement
    Agreement only to resolve this matter as expeditiously as possible and to avoid protracted litigation. It is hereby stipulated that nothing contained in this Stipulation and Settlement Agreement shall be construed as an admission by Respondent of any violation of the Occupational Safety and Health Act of 1970 or the standards or regulations promulgated thereunder, nor an admission of the allegations or conclusions contained in the citation which this Stipulation and Settlement Agreement covers. Respondent's execution of this Stipulation and Settlement Agreement shall not be deemed or construed as an admission of fault or liability and shall not affect any rights or defenses which Respondent may have in any claim or proceeding, whether civil, criminal or administrative, which now exists or may arise hereafter and be pursued by any person, agency, entity or party, nor shall this Stipulation and Settlement Agreement nor any order of the Occupational Safety and Health Review

    Secretary v. Ormet Primary Aluminum – Stipulation and Settlement Agreement
    OSHRC Docket No. 99-1566 – Page 2
    Commission entered pursuant to this Stipulation and Settlement Agreement be offered,
    used or admitted in evidence in any proceeding or litigation, whether civil, criminal, or
    administrative, either State or Federal jurisdictions, now pending or hereafter brought;
    provided, however, that this Stipulation and Senlement Agreement may become the final
    order of the Occupational Safety and Health Review Commission and OSHA may use and
    enforce it in any subsequent proceedings brought directly under the provisions of the
    Occupational Safety and Health Act of 1970).

12. This Stipulation and Settlement Agreement is being executed in quadruplicate
    originals this 14th day of March, 2000.

FOR RESPONDENT: FOR COMPLAINANT:

      /s/

John C. Artz, Esq. Patrick L. DePace, Esq.
Polito & Smock, P.C. U.S. Department of Labor
444 Liberty Avenue, Suite 400 881 Federal Offce Building
Pittsburgh, PA 15222-1220 1240 East Ninth Street
Cleveland, OH 44199
Counsel for Respondent Counsel for Complainant

FOR AUTHORIZED EMPLOYEE OF COUNSEL:
REPRESENTATIVE
Henry L. Solano
Solicitor of Labor

M. Gordon Morris
USWA District 1, Local 5724 Richard J. Fiore
105 Union Drive Regional Solicitor
Clarington, OH 43915

Benjamin T. Chinni
Associate Regional Solicitor

     Secretary v. Ormet Primary Aluminum – Stipulation and Settlement Agreement
                         OSHRC Docket No. 99-1566 – Page 3
                                         NOTtCE

            Any party (including any authorized employee representative of affected employees

and any affected employee not represented by an authorized representative) who has any objection to the entry of an order as set forth should communicate such objections within ten (10) days of the posting of this Agreement to:

                                   Judge Ann Z. Cook

                                   Occupational Safety and Health
                                     Review Commission
                                    One Lafayene Center
                                   1120 20th Street, N.W. - Room 990
                                   Washington, DC 20036-3419

A copy of said objection should also be sent to:

Patrick L. DePace, Esq.
Trial Anorney
U.S. Department of Labor
Office of the Solicitor
881 Federal OfEce Building
1240 East Ninth Street
Cleveland, OH 44199
and

John C Artz, Esq.
Polito & Smock, P.C.
444 Liberty Avenue, Suite 400
Pittsburgh, PA 15222- 1220

Secretary v. Ormet Primary Aluminum – Stipulation and Settlement Agreement OSHRC Docket No. 99-1566 – Page 4
COPY
United Steelworkers of America
District 1- Local Union No. 5724

105 Union Drive
Clarington, Ohio 43915

Phone: (740) 458-1345
Fax:(740) 458-1347
March 21, 2000

Patrick L. DePace, Esq
U. S. Department of Labor
Office of the Solicitor
881 Federal Office Building
1240 East Ninth Street
Cleveland, OH 44199

Re: Secretary of Labor v. Orrnet Primarv Aluminum Corp.
OSHRC Docket No. 99-1566

Dear Mr. Depace:

The Union refuses to sign off on this agreement because we do not feel it is in the best interest of our employees. We can agree to Citation I, Item 1, Citation 1, Item 2, and Citation 1, Item 3.

Regarding Citation 1, Item 4, the hazard and the exposure was there when the compliance of ficer cited them. I don't understand how you can just vacate it and say it didn't happen. We feel the Company will continue with this practice.

As for Citation 1, Item 5, I understand that it may have been cited incorrectly, and O.S.H.A. feels it can not win it in Court, but we still have a hazard and there is still exposure to that hazard. The Company will not work with us on this.

omplaint regarding this hazard. We would appreciate help in correcting this problem. Thank-you!

Sincerely,

CHARLIE ROBERTS
Chairman, Safety Committee
CR/e
L. U. 5724

Cc: Judge Ann .Z. Cook
John C. Artz, Esq.
Deborah J. Zubaty, Area Director