Northwest Airlines, Inc.

Plain-English summary

The judge approved a settlement between the Secretary and Northwest Airlines despite objections from the machinists' union. His order stated that the union had not submitted a timely report, but the union had faxed and mailed an objection letter by the August 31 deadline. That letter opposed withdrawal of lockout/tagout and powered-industrial-truck items and reduction of hazard-communication allegations. The Commission treated the union's later filing as a petition for review and found that the timely letter might not have been considered. It remanded the case for the judge to determine the receipt and effect of the August 30 letter.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.147; 29 C.F.R. § 1910.178; 29 C.F.R. § 1910.1200
• Outcome: Settlement approval directed for review and remanded for consideration of the union's timely objections.
• Key point: A settlement order could not rest on the stated absence of a timely union response when the record indicated that the union had submitted one.

Full text (OSHRC public release)

Docket No. 00-0954, Northwest Airlines

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 00-0954
:
NORTHWEST AIRLINES, INC. :
:
Respondent, :
:
INTERNATIONAL ASSOCIATION :
OF MACHINISTS AND AEROSPACE :
WORKERS, AIR TRANSPORT :
DISTRICT 143, AFL-CIO, :
:
Authorized Employee :
Representative. :
________:

DIRECTION FOR REVIEW AND REMAND ORDER

Before: ROGERS, Chairman; EISENBREY, Commissioner.

BY THE COMMISSION:

On August 3, 2001, the Administrative Law Judge issued an Order Granting Party Status
and Requiring Reports directing the Authorized Employee Representative (Union) and the
Secretary to report to him by August 31, 2001, concerning a Stipulation and Settlement Agreement
entered into between the Secretary and the Respondent. The Union responded by letter dated
August 30, 2001, and its counsel responded by letter dated October 19, 2001.

On November 7, 2001, the Judge issued an Order Approving Settlement which indicated
that the Union "did not submit a timely report, but sent a letter to me dated October 19, 2001."
The Judge's Order makes no mention of the Union's reply of August 30, 2001. After the case was
docketed by the Executive Secretary, the Union filed a letter with the Commission requesting that
the Order Approving Settlement be modified to reflect the efforts the Union and its counsel made
in responding to the Judge's Order of August 3, 2001.

It appears the Union's letter of August 30, 2001, might not have been considered by the
Judge, and that the Judge's order incorrectly states that the Union failed to submit a timely reply.
Accordingly, we construe the union's letter as a Petition for Discretionary Review and direct the
decision of the Administrative Law Judge for review pursuant to 29 U.S.C. � 661(j) and 29 C.F.R.
� 2200.92(a). We remand this case to the judge for further proceedings to consider the receipt and
effect, if any, of the Union's letter of August 30, 2001.

SO ORDERED.

Date: December 14, 2001

/s/

Thomasina V. Rogers

Chairman

/s/

Ross Eisenbrey

Commissioner

00-0954

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Counsel for Regional Trial Litigation

Office of the Solicitor, U.S. DOL

Room S4004

200 Constitution Ave., N.W.

Washington, DC 20210

Benjamin T. Chinni, Associate Regional Solicitor

Patrick DePace, Esq.

Office of the Solicitor, U.S. DOL

Federal Office Building, Room 881

1240 East Ninth Street

Cleveland, OH 44199

Katherine Shand Larkin, Esq.

Jackson & Kelly PLLC

Suite 2150

1099 18th Street

Denver, CO 80202

Dmitri Iglitzin, Esq.

Schwerin Campbell Barnard LLP

18 West Mercer Street, Suite 400

Seattle, WA 98119-3971

Bob Bennek

Safety & Health Director

International Association of

Machinists and Aerospace Workers,

Air Transport District 143, AFL-CIO

2600 Eagan Woods Drive, Suite 220

St. Paul, MN 55121-1152

Stephen J. Simko

Administrative Law Judge

Occupational Safety and Health

Review Commission

100 Alabama Street, S.W.

Building 1924, Room 2R90

Atlanta, GA 30303-3104

Air Transport

District 143

2600 Eagan Woods Drive, Suite 220

St Paul, Minnesota 55121-1152

651. 688.26710 fax 651 688 7229 International Association of Machinists and Aerospace Workers AFL-CI0

December 4, 2001

Mr. Ray H. Darling, Jr

Executive Secretary

Occupational Safety and Health Review Commission

1120 20th St., N.W.., Suite 980

Washington, D.C. 20036-3419

Dear Mr. Darling:

This letter is to provide you follow up information to the Notice of Docketing Of Administrative Law Judge's
Decision regarding the Occupational Safety and Health Review Commission Docket No. 00-0954, OSHA
Inspection No. 121910947.

At this time, I am requesting that the Order Approving Settlement dated November 7, 2001 be modified to
reflect the efforts made by this Union and Counsel for the Union, Dimitri Iglitzin. Specifically, in Judge
Simko's order, his honor states that "the Union did not submit a timely report, but sent a letter to me dated
October 19, 2001." This is simply not true. I faxed an explanation to Judge Simko on August 30, 2001 and
sent a copy via registered mail the very same day The letter dated October 19, 2001 is a letter further
explaining our position from counsel, Dimitri Iglitzin. I will enclose copies of both of these letters My letter
explained our objections to the proposed settlement in detail.

The union's decision not to sign this proposed settlement is based on this letter, and without exhausting any
further resources on this matter, we feel that our "timely objections" should be reflected in this decision. This
was supposed to be the opportunity afforded to us in the order dated August 3, 2001.

If there are any questions regarding this letter, I can be reached at (651) 365-3366.

Thank you for your consideration.

Sincerely,

/s/

Bob Bennek

Safety & Health Director

cc: Terry Quinn, IAMAW General Chair

Daniel J. Mick, Counsel for Regional Trial Litigation

Dimitri Iglitzin, Esq.

Katherine Shand Larkin

Patrick L. DePace, Esq.

Air Transport

District 143

2600 Eagan Woods Drive, Suite 220

St Paul, Minnesota 55121-1152

651. 688.26710 fax 651 688 7229 International Association of Machinists and Aerospace Workers AFL-CI0

EMO48433867US

VIA FAX: (404) 562-1650

August 30, 2001

Judge Stephen J. Simko, Jr.

1924 Building, Suite 2R90

100 Alabama Street, SW

Atlanta, Georgia 30303-3104

Dear Honorable Judge Simko:

This letter is to provide the information you requested regarding the Occupational Safety

and Health Review Commission Docket No. 00-0954.

As a representative of Air Transport District 143, International Association of Machinists

and Aerospace Workers (Union), we feel the inspection and citations issued should stand

as originally issued. The Union has made specific objections to the proposed settlement

known to the Company and to Patrick DePace, Esquire. The Union, therefore, shall not

sign the proposed settlement and requests that an additional follow-up inspection be

completed. The Union also requests all documentation of this case and any relevant

correspondence be sent to my attention to the address given above.

Specifically, the Union feels the most serious objections to the proposed settlement are:

the withdrawal of the 29CFR 1910.147 - Lockout/tagout (Citation 1, Items 1-4), and the

Company's failure to comply with application of tbis standard which puts the employees

the Union represents in danger. Furthemmore, the Union feels that withdrawal of the

29CFR 1910.178 - Powered Industrial Truck (Citation 1, Item 7) should not have

occurred as the Union feels the application of the training and evaluation portion of this

standard is inadequate. Lastly, the Union feels the reduction of type and penalty of the

29CFR 1910.1200 - Hazard Communication (Citation 1, Items 9(a)-9(b)) is unwarranted,

due to the fact that the employees are still not trained and are using improperly labeled

chemicals as of the writing of this letter, and the Company has not taken the steps to

abate. These are the Union's major objections to the proposed settlement.

The Union, as demonstrated in past cases, is always willing to work with both OSHA and

Company officials to satisfactorily abate all known hazards to the Union employees we

represent, and stand ready to do so. We will await this opportunity.

Judge Stephen J. Simko, Jr.

Occupational Safety and Health Review Commission Docket No. 00-0954

August 30, 2001

Page 2

Should you have any questions regarding these issues, I can be reached at (651) 365-3366.

Thank you for your assistance in this matter.

Sincerely,

/s/

Bob Bennek

Safety & Health Director

arr/opeiu #12

cc: Terry Quinn, General Chair

Dimiitri Iglitzin, Esquire-Schwerin, Campbell, Barnard

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 00-0954
:
NORTHWEST AIRLINES, INC. :
: EZ
Respondent, :
:
INTERNATIONAL ASSOCIATION :
OF MACHINISTS AND AEROSPACE :
WORKERS, AIR TRANSPORT :
DISTRICT 143, AFL-CIO, :
:
Authorized Employee :
Representative. :
________:

Order Approving Settlement

On November 5,2001, an executed stipulation and seulement agreement was received in the above-captioned case which resolves the issues pending before the Commission. Respondent withdraws its notice
of contest and represents that the violations, as amended, will be abated and that it has conformed with the
applicable posting and service requirements as fixed by the rules of the Commission. The International
Association of Machinists and Aerospace Workers, Air Transport District 143, objected to the terms of the
settlement agreement and, therefore, the Union representative did not sign the agreement.

By Order dated August 3, 2001, I directed the Secretary and the Union to report to me by August
31, 2001, as follows:

1. The Secretary shall advise whether and how the employee representative has been

afforded an opportunity "to provide input on all matters pertaining to the settlement

agreement." See Boise Cascade Corp., 14 BNA OSHC 1993 (Nos. 89-3087 &

89-3088, 1991). The Secretary shall also state whether or not she continues to

believe that she should proceed with the settlement.

2 . Air Transport District 143, International Association of Machinists and Aerospace

Workers, shall advise whether it has provided such input and whether it objects to the

reasonableness of the terms of abatement. It shall further advise whether it will sign

the proposed settlement agreement in this case.

The Secretary submitted her report on August 30, 2001. The union did not submit a timely report, but
sent a letter to me dated October 19, 2001.

In her report, the Secretary stated that her counsel discussed the settlement agreement with the Union's
attorney and its safety and health director. The Secretary afforded the Union an opportunity to provide input on
all matters pertaining to the settlement agreement. The Secretary's counsel represents that the Union's concerns
have been considered by the Secretary and communicated to respondent's counsel, who indicated that those
concerns will be addressed by Northwest.

The Secretary further determined that the Union's concerns do not warrant revision of the proposed
settlement agreement, and stated that she intends to proceed with the previously negotiated agreement.

In its belated letter of October 19, 2001, the Union stated that it believes the terms of abatement are
unreasonable and requested a hearing.

After full consideration of the submissions of the parties, including all previous submissions, I
conclude that there is no need for a hearing on the reasonableness of the terms of abatement. I further hold that
the union was afforded an opportunity to provide input on all matters pertaining to the settlement agreement,
that it provided such input to the Secretary, and that its objections to the reasonableness of the terms of
abatement have been considered by the Secretary.

Therefore, it is ORDERED:

1. That the terms of the settlement are approved and incorporated herein as part of this order.

2. That the citations and proposed penalties are hereby vacated, modified and affirmed in
   accordance with the terms of settlement and a penalty of $3,250 is assessed.

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3. That respondent's notice of contest is hereby dismissed.

SO ORDERED.

/s/

Date: November 7,2001

Judge Stephen J . Simko, Jr.

1924 Building, Suite 2R90

100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Phone (404) 562-1640 Fax (404) 562-1650

This order has been sent to:

For the Seeretary of Labor:

Benjamin T. Chinni, Esquire

Associate Regional Solicitor

U. S. Department of Labor

881 Federal Office Building

1240 East Nrnth Street

Cleveland, OH 44199

ATTN: Patrick Depace, Esquire

For the Employer:

Katherine Shand Larkin, Esquire

Jackson & Kelly, PLLC

1660 Lincoln Street, Suite 2710

Denver, CO 80264

For the Union:

Dimitri Iglitzin, Esquire

Schwerin, Cambell, Barnard, LLP

18 West Mercer Street, Suite 400

Seattle,WA 98119-3971

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