Ormet Primary Aluminum Corp., Hannibal Reduction Division
Commission remands a settlement approval to let the ALJ weigh the union's objections
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This is citable Commission precedent from 2000, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Ormet Primary Aluminum ran an aluminum reduction plant in Hannibal, Ohio. After OSHA issued a five-item serious 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. On review, the Commission majority held that the judge should have a chance to consider the union's objections, which she had not seen when she approved the deal, and it remanded the case to her. 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: When an authorized employee representative timely objects to a settlement, the judge must have the opportunity to consider those objections; approving the settlement without them warrants a remand.
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:
- Citation 1, Item 1 shall be affirmed as a serious violation with a penalty of
$ 1,700.00.
- Citation 1, Item 2 shall be affirmed as a serious violation with a penalty of
$1,275.00.
- Citation 1, Item 3 shall be affirmed as a serious violation w-with a penalty of
$ 1,700.00.
-
Citation 1, Item 4 shall be withdrawn and vacated by the Secretary.
-
Citation 1, Item 5 shall be withdrawn and vacated by the Secretary.
-
Respondent represents that the violations set forth in Citation 1, Items 1- 3
have been abated. -
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. -
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
-
Each party hereby agrees to bear its own fees and other expenses incurred by such party in
connection with any stage of this proceeding. -
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 ReviewSecretary 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). -
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
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